German Ins. Co. v. Norris

• Decision Date: 12 October 1895
• Citation: 32 S.W. 727
• Parties: GERMAN INS. CO. v. NORRIS.
• Court: Texas Court of Appeals

32 S.W. 727

GERMAN INS. CO. v. NORRIS.

Court of Civil Appeals of Texas.

October 12, 1895.

Appeal from district court, Erath county; J. S. Straughan, Judge.

Action by John Norris against the German Insurance Company to recover on a policy of insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Oeland & Smith, for appellant. M. F. Martin, Lee Young, and A. P. Young, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

Suit by appellee against appellant on a policy of insurance in the sum of $1,000,—$350 on household furniture, and $650 on dental furniture. Judgment in favor of appellee against appellant, on November 24, 1893, for the amount of the policy, with consequent appeal.

The conclusions of fact found by his honor are adopted by us, as follows: "(1) On April 21, 1892, the defendant executed to plaintiff its policy of insurance, as described in plaintiff's petition, whereby it assured him against loss by fire in the sum of $350 on his household and kitchen goods, and the sum of $650 upon dental tools, fixtures, supplies, etc. Plaintiff paid for the policy the premium of $10. (2) On May 23, 1892, plaintiff was the owner of the goods and property described in the policy, and he was the owner thereof at the time the policy was issued. (3) On May 23, 1892, while the policy was still in force, and while the plaintiff was still the owner of the property, the latter was destroyed by fire. (4) The fire was of accidental origin. (5) The property was worth the several prices stated in the exhibit attached to the plaintiff's petition, and in the aggregate it was of value exceeding the sum of $1,000. (6) Defendant was notified of the fire, and of the origin thereof. (7) The plaintiff furnished to defendant proofs of loss in accordance with the requirements of defendant's agent, and defendant waived any other proofs of loss. Defendant ratified the act of its agent in requiring proofs of loss in the forms submitted by the plaintiff."

Opinion.

We overrule the appellant's assignment of error first urged, complaining of the action of the court in not sustaining the general and special exceptions in defendant's third supplemental answer, directed to plaintiff's trial amendment filed November 23, 1893. While it is true that the trial amendment did not refer by name or number to the pleadings sought to be amended, and was thus violative of rule 27, governing the proceedings in the district and county court, it is as manifest that the pleading sought to be amended was the plaintiff's amended original petition as if the latter pleading had been mentioned by name or number. It is apparent that the ruling in no way prejudiced appellant, and that a reversal on account of it would be idle. The trial amendment covered the defects adjudged on exception by defendant to exist in plaintiff's amended original petition, and supplied with succinctness the averment of facts omitted in that pleading, and which we find it unnecessary to enumerate.

It is contended that there is no evidence to support the finding of the court that the goods destroyed were worth the several prices stated in the exhibits attached to plaintiff's petition, and, in the aggregate, that the property was of value exceeding the sum of $1,000. We do not concur in this proposition. The policy provides that the amount of loss or damage is to be estimated "according to the cash value of the property at the time of the fire." The plaintiff was permitted to testify, without objection, "that the property set out in Exhibits A and B (attached to plaintiff's petition) were worth, at the time they were destroyed by fire, the sum set opposite each article, and that all the property described in the exhibits were worth in value at the time they were destroyed by fire, in May, 1892, the sum of $1,589.15." Again, B. M. Phillips, for the plaintiff, stated that, a few days after the fire, Mr. Shumard, defendant's adjuster, being at the town of Stephenville, where the fire occurred, told the witness that Norris had furnished Shumard a...