Phœnix Ins. Co. v. Shearman

• Decision Date: 11 December 1897
• Court: Texas Court of Appeals
• Parties: PH&#x152;NIX INS. CO. v. SHEARMAN.<SMALL><SUP>1</SUP></SMALL>

43 S.W. 930

PHŒNIX INS. CO. v. SHEARMAN.¹

Court of Civil Appeals of Texas.

December 11, 1897.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by R. C. Shearman against the Phœnix Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The court submitted the issue of fraud and false swearing to the jury as follows: "(2) Were E. C. Parish and M. A. Parish, or either of them, guilty of any fraud or false swearing in stating the aggregate amount and value of the property destroyed by the fire in the statement sworn to by them before F. W. Hawes, notary public? Did they, or either of them, in said statement, claim that they, or either of them, owned and had on hand at the time of the fire any articles, as destroyed by the fire, which they, or either of them, in fact did not own or have on hand at the time of the fire? If so, did they, at the time they made said statement, honestly believe said claim to be true, or did they at said time know said claim to be false?" And in connection therewith the court instructed the jury as follows: "In connection with the second question, you are instructed that if a person honestly believes a thing to be true, and so states it, then, even though the statement be not true, and even though the person swears to such statement, this is not false swearing, within the meaning of that expression as used in said question. On the other hand, if a person makes a statement which he knows at the time is not true, or has good reason to believe is not true, and yet swears to it, then this is false swearing, within the meaning of that expression as used in said question."

Richard Morgan and Beaty & Culver, for appellant. Moseley & Smith, for appellee.

Conclusions.

STEPHENS, J.

This appeal is from a judgment on a special verdict in favor of appellee in the sum of $1,700, the amount of a fire insurance policy issued by appellant company to M. A. Parish, January 15, 1896, and assigned to appellee after the fire, which on May 23, 1896, in the city of Denison, destroyed the stock of merchandise and store fixtures insured, then of the aggregate value of $3,659.63, as found by the jury.

It is first insisted that the judgment must be reversed because the special verdict failed to find the fact of the alleged assignment of the policy, though this was not denied under oath, but only put in issue, if at all, by the general denial. After submitting the special issues, which did not include that of the assignment of the policy, the charge states that "it is agreed by the parties that the foregoing findings of fact you are directed to make, and the foregoing questions, cover all the material issues of fact involved in this cause." This statement was controverted for the first time in the motion for a new trial. The statement of facts contains no such agreement, and, unless it is therefore to be inferred that none was made, the record is silent upon the subject. No exception was taken to the charge, nor did appellant request the court to submit this issue to the jury. At the last session of the legislature, in order to cure such technical defects in special verdicts, a law was enacted which provides: "But the failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal or writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding." Gen. Laws (Called Sess.) p. 15; Sayles' New Civ. St. art. 1331. The statute regulating the assignment of written instruments provides that, when sued upon by the assignee, the assignment shall be regarded as fully proved, unless the defendant shall deny in his plea that the same is genuine, etc. Sayles' New Civ. St. art. 313. The policy, with the assignment indorsed thereon, was read in evidence. We conclude, therefore, that the above-quoted act of 1897 cures the technical defect complained of, although it was passed after the case was tried. Hence we need not determine whether, in the absence of this enactment, the verdict would have sustained the judgment. It is laid down by Mr. Cooley, in his standard work on Constitutional Limitations, that "if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the...