Firemen's Ins. Co. v. Havron

• Decision Date: 09 May 1925
• Docket Number: (No. 48.)
• Citation: Firemen's Ins. Co. v. Havron, 277 S.W. 742 (Tex. App. 1925)
• Parties: FIREMEN'S INS. CO. v. HAVRON.
• Court: Texas Court of Appeals

277 S.W. 742

FIREMEN'S INS. CO. v. HAVRON.

(No. 48.)

Court of Civil Appeals of Texas. Eastland.

May 9, 1925.

Rehearing Denied December 11, 1925.

Appeal from District Court, Haskell County; Bruce W. Bryant, Judge.

Action by Frank Havron, Sr., against the Firemen's Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. G. Senter, of Dallas, for appellant.

W. H. Murchison, of Haskell, for appellee.

PANNILL, C. J.

This appeal is from a judgment in favor of appellee on a policy of insurance against loss by fire issued by appellant to appellee. The questions raised relate only to the issues, pleaded by appellant, of fraud of appellee's agent in procuring the policy.

At the conclusion of the evidence appellant, in writing, requested the court to submit the case to the jury on special issues, and set out in said request the issue desired to be submitted, which was as to whether appellee's agent intentionally concealed from appellant's agent that other insurance companies had declined to insure the property, and thereby procured the issuance of the policy. This issue as requested was submitted by the court to the jury in the exact words as requested by appellant, and answered by the jury in the negative.

By this course appellant admitted there was a substantial conflict in the testimony, and cannot now be heard to say that there was no evidence to support the verdict and that the court should have instructed a verdict, although no request was made therefor. Lake v. Jones Lumber Co. (Tex. Civ. App.) 233 S. W. 1011; Dallas Hunting & Fishing Club v. Nash (Tex. Civ. App.) 202 S. W. 1032.

It is not intended to say that where the court of his own motion, or on motion of plaintiff, submits the case to the jury, the defendant cannot attack the sufficiency of the testimony where he requests the submission of issues arising under the court's determination to submit the case; but where, as here, the submission is induced by the defendant's action, the defendant is precluded from afterwards asserting that the evidence is insufficient to sustain the verdict.

The action of the appellant referred to, likewise, forestalls his contention that the evidence shows certain misrepresentations which ought to avoid the policy. No other issues were requested by appellant, and by such failure it waived the remaining defenses. Texas, etc., Transportation Co. v. Winters (Tex. Com. App.) 222 S. W. 541; G., H. & S. A. Ry. v. Price (Tex. Com. App.) 240 S. W. 524. It is there held that where the court fails to submit a ground of recovery pleaded by plaintiff and there was no request to submit the issue omitted, it was waived. No reason appears why this rule should not govern special defenses urged by the defendant, which defendant must plead and prove.

At any rate,...