Alamo Fire Ins. Co. v. Shacklett

• Decision Date: 11 April 1894
• Citation: 26 S.W. 630
• Parties: ALAMO FIRE INS. CO. v. SHACKLETT.
• Court: Texas Court of Appeals

26 S.W. 630

ALAMO FIRE INS. CO. v. SHACKLETT.

Court of Civil Appeals of Texas.

April 11, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by C. Shacklett against the Alamo Fire Insurance Company upon an insurance policy. Plaintiff obtained judgment. Defendant appeals. Affirmed.

J. H. McLeary, for appellant. W. W. Walling, for appellee.

FLY, J.

Appellee, as assignee of Mrs. Lou Guiberson, brought this suit to recover the amount of insurance due on a lot of furniture destroyed by fire. Appellant filed a general demurrer, general denial, and special answers. The case was tried by the court, and judgment rendered in favor of appellee for $879.75, with interest at the rate of 6 per centum from date of the judgment.

Appellant claims that the court erred in not sustaining its general demurrer to appellee's petition, and under the authority of Pelican Ins. Co. v. Troy Co-op. Ass'n, 77 Tex. 225, 13 S. W. 980, and Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484, there was error in the ruling of the court, but the error becomes immaterial, as afterwards, when the parties had announced ready for trial and there was an attempt to introduce the policies in evidence, the appellant objected because the exceptions in regard to fires by invasions, insurrections, etc., had not been pleaded, and appellee was permitted to file a trial amendment setting up the allegation that the fire did not come within the exceptions specified in the policies. Appellant claims that the court erred in permitting the trial amendment, but we do not think this position well taken. Rule 27 for the government of the district court provides for the filing of trial amendments, and we are of the opinion that appellee, having been misled by the ruling of the judge on the general demurrer, was in a position to ask and obtain leave to file a trial amendment. Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554. Appellant, after the order granting leave to file the trial amendment was made, stated that it was surprised at the ruling of the court, and asked that the case be continued, in order that it might meet the new issues raised. It is said by the supreme court: "We do not understand that, upon the coming in of an amendment presenting new issues, the party who claims surprise is entitled to a continuance as a matter of absolute right. If the court be satisfied upon sufficient grounds that in fact there is no surprise, and that he is as ready to proceed as if the amendment had been filed a sufficient length of time to enable him to prepare his case for trial, and that the application to continue is for delay only, the continuance should be refused." Beham v. Ghio, 75 Tex. 88, 12 S. W. 996. The facts in this case indicate that the ruling of the court was judiciously made, and that appellant was not deprived of any right of defense by having the trial at the time.

It is complained that the trial judge failed and refused to file conclusions of fact and law, although a motion to that effect was made and granted. No bill of exception was reserved to the failure to file the conclusions. There is a full statement of facts, and appellant has no cause of complaint. Bank v. Stout, 61 Tex. 570. The evidence shows that the furniture had been insured by appellant with full knowledge of all the facts, that it was destroyed by fire, not originating from any of the causes excepted in the policies, and there is no reason whatever assigned why appellant should not pay the amounts for which it bound itself. The judgment is affirmed.

On Rehearing.

(May 16, 1894.)

There is no sufficient reason presented by appellant in the motion that entitles it to a rehearing of this case. On the question of amendments, in a case very similar to this, the supreme court of Texas says: "The trial judge has a large discretion in regard to the conduct of a trial, and it should always be exercised so as to attain the ends of justice. * * * They (plaintiffs) clearly had the right, when the telegram was produced, to claim surprise, and withdraw their announcement so as to amend. Why, then, should they not have been permitted to announce ready a second time, and proceed to trial? And, such being their right, why should they be required to go through the formality of withdrawing the case, and re-introducing the evidence that had already been produced?" Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554. It has been held in a number of cases that it is within the discretion of the district judge to allow a party to withdraw his announcement of readiness for trial for the purpose of filing an amendment, and that this discretion will not be...