Boston Ins. Co. v. Fitzpatrick
| Decision Date | 31 October 1934 |
| Docket Number | No. 9443.,9443. |
| Citation | 75 S.W.2d 897 |
| Parties | BOSTON INS. CO. et al. v. FITZPATRICK. |
| Court | Texas Court of Appeals |
Appeal from District Court, Val Verde County; Brian Montague, Judge.
Action by A. F. Fitzpatrick against the Boston Insurance Company and others. From an adverse judgment, defendants appeal.
Judgment reversed and cause remanded for new trial.
T. M. West, Nat L. Hardy, and Frank B. Buchanan, all of San Antonio, for appellants.
Boggess, LaCrosse & Lowrey, of Del Rio, for appellee.
This is an appeal by Boston Insurance Company, Fireman's Fund Insurance Company, and Queen Insurance Company of America from a judgment against each, respectively, in favor of A. F. Fitzpatrick upon three policies of fire insurance.
The plaintiff's petition identified each policy and stated the obligation thereof in general terms, concluding the description of the policy as "being hereby referred to for further statement of the terms and conditions thereof." Each policy was upon the form which is known as "Texas Standard Fire Policy" and which is prescribed by the state insurance commission pursuant to statute. And each policy contained the following provision, making exceptions from the general liability imposed by the policy, to wit:
"This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon."
The petition failed to allege that the fire did not occur under any of the conditions excepted from the obligations of the policy. And the evidence, likewise, failed to negative the existence of facts that might bring the loss within the exceptions.
In a suit on a fire insurance policy it is necessary for the insured to plead and prove facts that bring the loss within the general obligation of the policy and that take it out of the specified exceptions from liability. Coyle v. Palatine Insurance Co. (Tex. Com. App.) 222 S. W. 973; Chicago Fire & Marine Ins. Co. v. Foley (Tex. Civ. App.) 58 S.W.(2d) 174; America Insurance Co. v. Maddox (Tex. Civ. App.) 60 S.W.(2d) 107...
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