Fidelity & Guaranty Fire Corporation v. Ormand
| Decision Date | 19 July 1933 |
| Docket Number | No. 7868.,7868. |
| Parties | FIDELITY & GUARANTY FIRE CORPORATION v. ORMAND. |
| Court | Texas Court of Appeals |
Nat L. Hardy and T. M. West, both of San Antonio, for plaintiff in error.
Stanton Allen, of Bartlett, for defendant in error.
The parties will be designated appellant and appellee.
Appellee sued appellant on its policy of insurance for $1,600, covering loss against fire of "all household and kitchen furniture and wearing apparel and personal property" of appellee located on the premises described, alleging that the same had been totally destroyed by fire; and upon the trial recovered judgment as prayed; hence this appeal.
Special issue No. 1, submitted to the jury, reads as follows: "From a preponderance of the testimony, what pecuniary loss or damage, if any, do you find was caused to the household furniture, wearing apparel and personal property of the plaintiff by reason of the fire, as testified to by the witnesses?"
In connection with the issue, the jury were instructed as follows: "In this connection you are instructed that the loss, if any, is the actual cash value of the property at the time of the fire, with proper deductions for depreciation, however caused, and in no event would it exceed what it would cost the insured to repair or replace the same with material of like kind and quality."
The court further instructed the jury as follows: "By the term `actual cash value' as used in Special Issue No. 1, is meant: Its saleable, or cash value."
Appellant contends that the clause, "as testified to by the witnesses," as used in the issue, constituted a charge on the weight of the evidence. No objection was made to the charge upon this ground, and it cannot be urged for the first time on appeal. No doubt the trial court would have eliminated the clause if the objection here presented had been made to it.
Appellant next complains that the issue did not submit (1) the proper measure of damage; (2) that it failed to submit for consideration of the jury the amount of depreciation in value of the property destroyed, however caused; and (3) that the court failed upon appellant's request to properly define in connection with the issue the term "actual cash value."
The court submitted the measure of liability or damages provided for in the contract of insurance, which was that "the company shall not be liable beyond the actual cash value of the property at the time of the loss, with proper deductions for depreciation, however caused, and shall in no event exceed what it would cost the insured to repair or replace the same with material of like kind and quality." The measure of damages submitted was therefore proper, because it was the measure contracted for in the policy of insurance.
The instruction also required the jury to take into consideration the depreciation in value of the property destroyed by fire, however caused. The instruction quoted the terms of the policy in this regard, and sufficiently instructed the jury to allow for depreciation in value of the property destroyed.
The definition given that the actual cash value of the property destroyed meant its saleable value or cash value has been approved by the courts of this state. Milwaukee Mechanics' Ins. Co. v. Frosch (Tex. Civ. App.) 130 S. W. 600.
The court did not err in refusing to give the requested instruction as to the burden of proof. The issue submitted required the jury to find "from a preponderance of the testimony" what loss or damages appellee suffered by the fire. This form and manner of placing the burden of proof has been approved by all the decisions of recent years. Federal Surety Co. v. Smith (Tex. Com. App.) 41 S.W.(2d) 210; Gilmer v. Graham (Tex. Com. App.) 52 S.W.(2d) 263, 265; Gattegno v. The Parisian (Tex. Com. App.) 53 S.W.(2d) 1005.
The court did not err in admitting in evidence an itemized list of the property claimed to have been destroyed by the fire, showing the value placed by appellee for each article, and sworn to by him. Such list was required to be furnished appellant under the terms of the policy. It filed a general denial, and appellee was therefore required to prove that he had complied with this provision of the insurance contract before he could recover. The...
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