Ætna Ins. Co. v. Eastman
| Decision Date | 07 February 1903 |
| Citation | 72 S.W. 431 |
| Parties | ÆTNA INS. CO. v. EASTMAN.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Hunt county; H. C. Connor, Judge.
Action by H. P. Eastman against the Ætna Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.
F. M. Etheridge, for appellant. Looney & Clark, for appellee.
This is a suit to recover on a fire insurance policy for loss by fire. Judgment was rendered for plaintiff, and defendant appealed.
The policy provided against additional insurance, and this provision was violated by plaintiff. This violation is sought to be avoided by plaintiff on the ground that he notified one Magrill, defendant's agent, at the time, that he had procured such additional insurance, and Magrill assented thereto. The sole issue presented on this appeal is whether or not such notification was given, appellant contending that the evidence is insufficient to support the verdict and judgment. The appellate courts of this state are reluctant to disturb a verdict where there is any evidence to support it, but they have the power and it is their duty to do so where the evidence is of such a character as to convince them that an injustice has been done. This is a case wherein we feel justified in exercising that power. The great preponderance of the evidence is against the contention of plaintiff that he notified Magrill that he had procured additional insurance on the property burned. Plaintiff, it is true, testified that he notified Magrill of taking out additional insurance after and on the day it was procured from one Henderson, the agent of another company. But on a former trial he testified that he had no conversation with Magrill after procuring said additional insurance and before the fire. He attempted on the last trial to explain this statement, but, to our minds, the explanation is far from satisfactory. He also, in effect, stated to Henderson just after the fire that he had not notified Magrill of procuring said additional insurance, and this he does not deny, but virtually admits same. Magrill denies emphatically that plaintiff had notified him. The policy sued on required an indorsement thereon if additional insurance was taken out. There was no such indorsement on the policy. This requirement can be waived, but the fact that there was no such indorsement is a circumstance of some consideration. There were other slight circumstances tending to depreciate plaintiff's testimony, but w...
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...v. Coffee, 6 La. App. 323; Pailet v. Young, 3 La. App. 265; Ross v. Director General of Railroads (N.J.), 110 A. 750; Aetna Ins. Co. v. Eastman (Tex.), 72 S.W. 431; Marinelli v. Ferrand, 40 N.Y.S. 151; Riley Interurban State Ry. Co., 87 N.Y.S. 423. There is insufficient evidence in the reco......
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Texas & P. Ry. Co. v. Sherer
...enough to justify a reliable conclusion." That decision was followed by the Court of Civil Appeals for the Fifth District in Ætna Ins. Co. v. Eastman, 72 S. W. 431, in which a judgment was reversed by reason of conflict in the testimony of the plaintiff upon a material issue; such conflict ......
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Abrams v. Bradshaw
...make his testimony at least of little value — not enough to justify a reliable conclusion." To the same effect see Ætna Ins. Co. v. Eastman (Tex. Civ. App.) 72 S. W. 431. If the doctrine is recognized that verdicts may be impeached by post-trial testimony of jurors, to the effect that they ......
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Ætna Ins. Co. v. Eastman
...Judge. Action by H. P. Eastman against the Ætna Insurance Company. From a judgment for plaintiff, defendant brings error. Affirmed. See 72 S. W. 431. Etheridge & Baker, for plaintiff in error. B. F. Looney, for defendant in TALBOT, J. H. P. Eastman brought this suit in the district court of......