Phœnix Ins. Co. v. Padgitt

• Decision Date: 12 June 1897
• Citation: 42 S.W. 800
• Parties: PH&#x152;NIX INS. CO. OF HARTFORD v. PADGITT et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 800

PHŒNIX INS. CO. OF HARTFORD v. PADGITT et al.¹

Court of Civil Appeals of Texas.

June 12, 1897.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Suit by Padgitt Bros. and others against the Phœnix Insurance Company of Hartford. From a judgment for plaintiffs, defendant appeals. Affirmed.

Leake, Henry & Greer and D. A. Nunn, for appellant. G. G. Wright and John Bookhout, for appellees.

Conclusions of Fact and Law.

LIGHTFOOT, C. J.

This suit was brought by appellees upon a certain policy of insurance issued by appellant to appellee W. M. Nichols on October 29, 1894, upon his stock of harness, saddles, and leather, manufactured and unmanfactured, and in process of manufacture, including saddles, harness, and such other material used in the manufacture of the same tools, machinery, work benches, counters, etc., situated in a certain building in Crockett, Tex. The defenses set up and relied upon by the appellant will appear specifically under the different assignments of error which are herein considered. There was a judgment below in favor of appellees, from which this appeal is taken.

From the testimony, and the verdict and judgment thereon, the conclusions are reached: That on October 29, 1894, the appellant issued to appellee W. M. Nichols the policy of insurance sued upon, and fully described in the pleadings of the parties; that the premium therefor was duly paid by said Nichols; that on December 31, 1894, while said policy was in full force, the fire occurred in said building, without fault on the part of the said Nichols, whereby the property mentioned in the policy was damaged and destroyed to the full amount found by the verdict and judgment below; that after such fire the said Nichols made proofs of loss, as required by the terms of the policy; and that he assigned to his co-plaintiffs, Padgitt Bros., an interest in the policy to the amount of $1,225.57.

The defenses pleaded by appellant in the court below, and relied upon, were, in effect: (1) That the fire which burned and damaged the goods insured under the policy was caused by the plaintiff W. M. Nichols, or by his aid and procurement, for the purpose of swindling and defrauding the defendant. (2) That said W. M. Nichols violated the iron-safe clause of the policy. (3) That plaintiff W. M. Nichols was guilty of false swearing and fraud in his proofs of loss. (4) That said W. M. Nichols was guilty of false swearing in his depositions taken subsequent to the fire. (5) That said W. M. Nichols was guilty of false swearing in the statement of the amount of his credit sales for the months of October, November, and December, 1894. (6) That said W. M. Nichols, in his application for the policy of insurance, warranted that there were no openings in the side walls to the side of the building which contained the goods, when, in fact, there were such openings; and that his said statement, which he warranted, was untrue. None of the above defenses were sustained by the evidence, and plaintiffs were entitled to recover the amount found by the verdict and judgment. Our conclusions upon the different questions raised will more clearly appear under the different assignments considered.

The first assignment of error is as follows: "The court erred in excluding the evidence of W. M. Nichols' continued drunkenness, idleness, and loafing, as it tended to show that he had not accounted for all the goods saved from the fire; that the increased stock shown to be on hand could not be accounted for on the theory that it was manufactured after the fire." On the trial of the case the appellant attempted to show that Nichols had acted fraudulently in his proofs of loss, in which he had represented that he had saved only $320.72 worth of goods from the fire; and that seven months after the fire he had on hand stock of the value of $673.81. It was shown by defendant's own witnesses that three persons—Champion, Berry, and Waller —were appointed a committee at the request of the defendant, after the fire, who took an inventory of the property saved, estimated the damage done to same, and found the property saved, in its damaged condition, to be worth $320.72. It was also shown that Nichols, after the fire, removed the remnants of his stock and tools to his house; that he kept workmen there, and continued to manufacture raw material into saddles, harness, etc.; and that he bought in the goods. The evidence offered by the appellant tending to show Nichols' continued drunkenness, idleness, and loafing, after the fire, was properly excluded. If intended as a circumstance to show that the amount of the goods he had on hand after the fire was falsely stated, it is too remote. We find no error under this assignment.

2. The second assignment of error is as follows: "The court erred in excluding evidence to show that Nichols, the insured, and one of the plaintiffs, had, by his own strange conduct preceding the fire, impressed the community in which he lived with the general belief that he would set fire to the town." This assignment is not sufficiently specific. It does not point out with clearness and certainty the particular testimony which was excluded, and does not comply with the rules. Even if it did, the testimony as to how he impressed the community at large would be too vague and indefinite, and would not be legitimate evidence.

3. The third assignment is as follows: "The court erred in excluding evidence offered by the defendant tending to show that the fire in question was incendiary, and that the plaintiff W. M. Nichols was the guilty party." This assignment is not sufficiently specific. It should have pointed out what evidence was excluded tending to show that fact. There was much testimony admitted by the court upon that question, and with the mass of testimony upon that subject set out in the statement of facts it is evident that the court below did not exclude any evidence upon that question which was considered legitimate testimony. If the fire in question was of incendiary origin, and plaintiff W. M. Nichols was the guilty party, then plaintiffs should not have recovered in this case. The above assignment does not comply with the rules.

4. The fourth assignment is as follows: "The court erred in excluding evidence tending to show that W. M. Nichols, the plaintiff, had conspired with Scott Sites and Burrell Hudson to entrap and suborn Ned Bayne to swear falsely in this case, for the purpose of controlling its result, and for excluding evidence as to the character of each of these parties." This assignment seems intended to embrace two points: (1) The exclusion of evidence tending to show that W. M. Nichols conspired with the parties named to procure Ned Bayne to swear falsely; (2) to the exclusion of evidence as to the character of these parties. Upon the last-named point, the testimony of George Waller, which is shown in the statement of facts, sets out fully the character of the parties named. The testimony of said witness was also given to the effect that he had seen the parties—W. M. Nichols, Burrell Hudson, and Scott Sites—in secret conversations behind Nichols' shop and in E. L. Simpson's saloon. That portion of the evidence was not objected to, as shown by bill of exceptions; but the following evidence was objected to, and excluded: "My suspicion was aroused on seeing them together, holding secret conversations. Seeing them in secret places, and knowing their character, is what aroused my suspicion. I watched them closely. I had them summoned on one occasion before the justice of the peace on the charge of conspiring to swear falsely against me. Scott Sites said they had talked in Nichols' house to swear that Col. D. A. Nunn had offered them a bribe of $500 to swear that Nichols had hired them to set fire to the town, and that I had threatened to put them in jail if they did not swear it. Scott Sites swore this before the justice of the peace, and at the same time he admitted that such was not the case, but it was only a joke. W. M. Nichols would not swear at all, and the justice of the peace released him. We could not find Burrell Hudson at the time of the investigation." This portion of the testimony was objected to as incompetent and irrelevant, and the objection was sustained. This seems to be only a portion of the evidence upon that subject, and we get it, not from the assignment, nor from the proposition under it, nor from the statement under the proposition, but from bill of exceptions No. 10, which we find in the record. Under this statement we are referred to bills of exceptions Nos. 10 and 12, transcript, pages 42 to 46; bill of exceptions No. 5, transcript, pages 33 to 37. Where the conspiracy has been alleged and shown, we are not prepared to dissent from the proposition of law laid down by appellant that the conduct of parties in a suit, in so far as it may involve reprehensible motives, indicating a fraudulent purpose to wrongfully effect the result by unfair means, is a proper subject of inquiry on the trial. But we must insist that it is necessary, before we can enter into a fair investigation, that the appellant should point out the evidence which has been excluded, and upon which ruling he claims that the court below has erred. The occurrences mentioned above in the testimony of George Waller were not sufficient to show conspiracy against the appellant in this case, so as to admit the declarations of Scott Sites against the appellees. In so far as this case was concerned, the testimony was irrelevant to any issue joined, and was properly excluded. In considering the great mass of evidence admitted by the court along this line, we think the appellant had no ground of complaint at the exclusion of this testimony. Especially so as Scott Sites and Burrell Hudson were not parties to this suit, and were not even witnesses in the case.

5. The fifth assignment of error is as follows: "The court erred in excluding...