Commercial Union Assur. Co. v. Dunbar

• Citation: 26 S.W. 628
• Parties: COMMERCIAL UNION ASSUR. CO. v. DUNBAR.
• Decision Date: 02 May 1894
• Court: Texas Court of Appeals

26 S.W. 628

COMMERCIAL UNION ASSUR. CO. v. DUNBAR.

Court of Civil Appeals of Texas.

May 2, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by J. K. Dunbar against the Commercial Union Assurance Company and Patrick Fletcher. Plaintiff obtained judgment. The insurance company appeals. Reversed.

Denman & Franklin, for appellant. McLeary & Fleming, for appellee.

NEILL, J.

This suit was brought by J. K. Dunbar against appellant on a fire insurance contract for loss occasioned by burning of the insured premises. Patrick Fletcher was joined as a party defendant, it being alleged in the plaintiff's petition that the loss, if any, under the policy was made payable to him as his interest might appear. Before the case was tried, the original plaintiff died, and his executrix, A. A. Dunbar, was made the party plaintiff. The case was tried before a jury, and resulted in a verdict in favor of plaintiff for $535, upon which the judgment was rendered from which this appeal is prosecuted.

There are 28 assignments of errors insisted upon by counsel for appellant in their brief, all of which are responded to by appellee's counsel in theirs. We have examined and considered all the propositions and counter propositions under the assignments of either party, as well as the authorities accessible cited in support of them. But we deem it unnecessary and inexpedient to discuss and pass upon all these assignments of errors in our opinion, or to discuss such as we pass upon separately. The sufficiency of plaintiff's pleadings to show a cause of action was assailed by general and special exceptions, and, after the exceptions were overruled, the sufficiency of such pleadings to allow the admission of testimony offered was questioned, as well as their sufficiency to support the judgment rendered upon the verdict. The petition alleges that on the 15th day of September, 1890, appellant insured appellee for the term of three years against loss by fire in the sum of $1,575 on his one-story frame, metal-roofed building, occupied as a dwelling, situated on corner of Elmira and Jackson streets, San Antonio, Tex., and also $175 on his fences inclosing said building; that appellant, through its agents, executed and delivered to appellee a policy of insurance therefor, dated on the 15th of September, 1890, and numbered 100,838 on the usual form in use by appellant company, by reason whereof it became liable and bound to pay appellee all damages occurring to him by eason of the destruction of said building or fences described in said policy, or any portion thereof, not exceeding the sum of $1,750. That on the 26th day of August, 1891, the said house and fence were totally destroyed by fire, without any fault on part of plaintiff, and the damages to said building exceeded the sum of $1,575, and the damages to said fence exceeded the sum of $175, wherefore defendant became liable and bound to pay plaintiff the said damages so accruing, amounting in the aggregate to $1,750. The petition does not make an exhibit of the policy, nor does it set out the terms and conditions of the contract of insurance. In addition to a general demurrer, among the special exceptions to the petition are that it does not set out the contract of insurance; that it alleges plaintiff complied with the terms of the policy, but does not set out the terms or manner of his compliance; that there are no allegations in said petition sufficient to show plaintiff is entitled to recover any damages on the policy referred to for the alleged destruction of the property. The rules of pleading, when not modified by statute, are the same in their application to contracts of insurance as to other contracts. In declaring on a contract of insurance, it, or so much as will show a right to recover, must be set out in terms or in substance. In cases...