Republic Ins. Co. v. Dickson

' WALKER, Chief Justice.

In the lower court on an. instructed verdict, appellee, J. W. Dickson, was awarded judgment against appellant, Republic Insurance Company, for the amount of $1,200 with interest, being the principal amount of a fire insurance policy. Appellant’s defenses were a breach of the following warranties: (a) The insurance on the insured premises was effective “only when occupied by the owner and not otherwise, as a dwelling”; (b) “this entire policy, unless otherwise provided by agreement endorsed herein or added hereto, shall be void * * *' if a building herein described be or become vacant for a period of exceeding ten days.” In answer to these' defenses appellee pleaded waiver and es-toppel. The testimony was satisfactorily to the effect that, before the policy was issued, appellee notified appellant that he and his family would, in the near future, move out of the house, and that it would be occupied by a tenant, and further that periods of vacancy would intervene in the occupancy of the house. The testimony was further to the effect that, shortly after the policy was written, the owner moved out and a tenant moved in, and that immediately preceding the fire the house was vacant for more than twenty days. The trial court instructed the verdict on the theory that the knowledge possessed by the agent, before the policy was issued, that the owner would move out and that the house would be vacant, constituted a waiver of these warranties, and that by possessing this knowledge appellant was estopped to insist upon these warranties. On the former appeal we held affirmatively against this legal conclusion of the trial court; we held there was no breach of the warranty of occupancy because, as the record was before us at that time, it was expressly stipulated in the face of the policy that the house could be occupied either by the owner or by a tenant. The testimony on this appeal is clear that the house was insured only while occupied by the owner.

On the issue made under the warranty of occupancy, appellant’s principal contention is that the court erred in instructing a verdict on the issues of waiver and estoppel; it being appellant’s contention, under this proposition, that these issues should have gone to the jury. This assignment is sustained. Though the information given the agent before the policy was issued was not sufficient to raise the issues of waiver and estoppel, yet we find in the record this testimony: After the policy was issued and delivered to appel-lee, he notified appellant’s agent that he was moving out of the house, and that a tenant was moving in. The law of these facts was thus stated by us on the former appeal, 69 S.W. (2d) 599, 602: “In this state it has also been held that, where the company acquires knowledge of facts that operate to forfeit its policy and does not cancel the policy, but retains the unearned premium, it will be held to have waived the condition and will be estopped to assert the forfeiture.” Appellee’s testimony was all the evidence on this point, and, therefore, under the rule announced by the Commission of Appeals in Mills v. Mills, 228 S.W. 919, these issues should have gone to the jury.

On the issue of vacancy on the former appeal, it appeared as a matter of law that the house had been vacant more than ten days before the fire. On this appeal the testimony is uncertain. The only witness on the issue stated facts showing a breach of this warranty, but subsequently modified his testimony to such an extent that we cannot say, as a matter of law, that tire house was vacant for more than ten days. However, appellant had the right to go to the jury on that issue. Had the jury found that issue in its favor, on this trial there was no testimony raising the issues of waiver or estoppel against this defense. Appellant has asked us. to reverse the judgment of the lower court and render judgment here in its favor. This proposition is overruled because it reasonably appears to us that, on another trial, testimony will be available to appel-lee sufficient to send these issues to the jury.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded for a new trial.