Fidelity-Phœnix Fire Ins. Co. v. Mumaw

• Decision Date: 17 June 1926
• Docket Number: (No. 379.)
• Citation: 287 S.W. 120
• Parties: FIDELITY-PHŒNIX FIRE INS. CO. v. MUMAW et al.
• Court: Texas Court of Appeals

287 S.W. 120

FIDELITY-PHŒNIX FIRE INS. CO. v. MUMAW et al.

(No. 379.)

Court of Civil Appeals of Texas. Waco.

June 17, 1926.

Rehearing Denied October 7, 1926.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by Mrs. L. B. Mumaw, joined pro forma by her husband, against the Fidelity-Phœnix Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Thompson, Knight, Baker & Harris, of Dallas, for appellant.

Baskin, Eastus & Greines, of Fort Worth, for appellees.

GALLAGHER, C. J.

This suit was instituted by Mrs. L. B. Mumaw, joined pro forma by her husband, appellees herein, against Fidelity-Phœnix Fire Insurance Company, appellant herein, on an insurance policy issued by it on a Packard automobile which was burned. The parties will be designated as in the trial court. Defendant pleaded that the policy sued on contained a provision for appraisal in case of loss or damage that such appraisal was had and an award made in favor of plaintiff for the sum of $450. Said appraisal and award were pleaded both in abatement of plaintiff's suit and in bar of her demand. There was a trial by jury. The only issues submitted were with reference to the action of the appraisers in making said award and with reference to the value of said automobile immediately before and after it was burned. The jury found in response to such issues that plaintiff asked to be allowed to appear before the appraisers and introduce evidence in support of her claim; that the appraisers failed or refused to permit her to do so; that the reasonable market value of said automobile immediately prior to the fire was $1,500 and immediately thereafter only $50. The court made no specific disposition of said award but ignored the same and rendered judgment in favor of plaintiff against defendant for the sum of $1,125.

Opinion.

Defendant bases its prayer for reversal on two grounds. The first is a complaint of certain statements made by plaintiff's attorney in his closing argument, and the second is that the jury's finding with reference to the value of the car immediately before it was burned is excessive.

Defendant does not contend that the finding of the jury with reference to value is without evidence to support it. Such contention would be wholly untenable. Plaintiff's witnesses Burns and Lowe testified affirmatively that the market value of said automobile at the time it was burned was $1,800 and $1,500, respectively. Both of these witnesses testified that they were well acquainted with the car and its condition at the time. None of the other witnesses were acquainted with the car nor its condition at such time. While there was some conflict in the evidence with reference to whether said automobile was a 1920 model or a 1918 model, there was evidence sufficient to justify the jury in finding that it was a 1920 model. Plaintiff's witness Etier testified that if said automobile was a 1918 model its reasonable market value was from $1,200 to $1,500, and that if it was a 1920 model its value would be from $1,500 to $2,000. Defendant's witness Jordan testified that if said automobile was a 1920 model its value was approximately $1,500. The only further testimony on the subject of value was the testimony of the witness Jordan that if said car was a 1918 model in good condition its value was from $500 to $650, the testimony of the witness Pentecost that if said automobile was a 1918 model its value was $500, and the testimony of appellant's witness Hartshorn that it was a 1915 model and that its value was $350. There were...