Joy v. Liverpool, London & Globe Ins. Co.

• Decision Date: 13 May 1903
• Parties: JOY v. LIVERPOOL, LONDON & GLOBE INS. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 822

JOY v. LIVERPOOL, LONDON & GLOBE INS. CO.^*

Court of Civil Appeals of Texas.

May 13, 1903.

Appeal from District Court, Kaufman County; J. E. Dillard, Judge.

Action by M. A. Joy against the Liverpool, London & Globe Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Robt. L. Warren and Davis & Garnett, for appellant. Alexander & Thompson, A. H. Dashiell, and James Young, for appellee.

NEILL, J.

Appellant (plaintiff below) sued appellee (defendant below) to recover $4,000 on a fire insurance policy issued on the 5th day of August, 1897, by the defendant to C. Van Ordstrand for that sum, covering its proportionate part of $1,500 on building, $4,500 on general ice machinery, foundations, settings, and connections, $2,500 on engines, boilers, their connections, foundations, and settings, $4,000 on machinery, dynamos, exciters, lamps, switches, wire, and other appliances, aggregating $12,500 of insurance on an electric light and ice plant building and the machinery and supplies therein situated; loss, if any, payable to the Harris National Bank of Terrall, Texas, as its interest might appear. Plaintiff alleged a total loss of the property by fire occurring on August 15, 1897; that immediately after the fire Van Ordstrand made out proofs of the loss in compliance with the terms of the policy, and delivered same to defendant, but that it denied any liability under the policy, and waived any proof of the loss; and that afterwards the policy was duly assigned to plaintiff, who is the owner and holder of the same. The defenses pleaded were (1) that the issuance of the policy was fraudulently procured by misrepresentations on the part of the assured in reference to the ownership of the property; (2) that defendant's permission for the existence of $12,500 concurrent insurance was procured by false and fraudulent representations; (3) that after the loss by fire the assured was guilty of fraud and false swearing within the terms of the policy, in that he claimed a loss largely in excess of the true loss; and (4) that the fire which destroyed the property originated by the act, design, and procurement of Van Ordstrand, the insured. The trial of the case resulted in a verdict and judgment for the defendant.

Before the commencement of the trial, the defendant, for the purpose of obtaining the right to open and conclude in adducing the evidence and in the argument of the cause, filed a written admission in the language of rule 31 of the district court that plaintiff had a good cause of action as set forth in his petition, except so far as it might be defeated in whole or in part by the facts of the answer constituting a good defense, which might be established on the trial. After the admission was filed and entered of record, the right to open and conclude was accorded the defendant by the court. The action of the court in according defendant this right is made the basis of the first assignment of error. The substance of the propositions asserted under this assignment is: (1) That when an answer is voluminous, containing a general denial and special denials of extent of loss, the value of the property, etc., it is not sufficient for the defendant to file an admission in the language of the rule, but he should plainly specify which of the allegations in the plaintiff's petition he admits to be true, and what defenses are relied on by the defendant, so that there may be no confusion or uncertainty concerning the issues to be tried. "An admission, made in the very language of the rule, must be construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover, but does not admit allegations in the petition which merely deny matter alleged in the answer, the burden of proof of which is upon the defendant." Smith v. Traders' Nat. Bank, 74 Tex. 545, 12 S. W. 222. Such an admission confines the defense to the specific matters set up by the defendant. Assur. Co. v. Munger, etc., Co. (Tex. Civ. App.) 49 S. W. 276. The court in its charge so construed the admission when it stated: "The defendant, in writing, has, in substance, admitted the execution of the policy, and plaintiff's ownership of the same; that the property insured exceeded in value $15,000; its total destruction by fire; and the receipt of the proofs of loss. Under said admission the defendant can now rely only upon its allegations that Van Ordstrand induced Albert Collins to burn the property insured, which, if true, will defeat any recovery, and upon its allegation that Van Ordstrand misrepresented his title to the Arctic Ice Machine, which defense, if true, will reduce the plaintiff's recovery to $3,305. You will therefore find for the plaintiff in the sum of $5,153, unless you find for the defendant in whole or in part under the instructions hereinafter given you." The subsequent part of the charge relates, and the evidence was confined, solely to the allegations of the two defenses, which are in the nature of confessions and avoidance. The burden was upon the defendant to establish one or the other of these defenses in order to defeat plaintiff's cause of action either in whole or in part. If its evidence established that Van Ordstrand induced Collins to burn the property, a complete defense to the entire action was made out. If it did not, but showed that the assured misrepresented his title to the ice machine, the amount of plaintiff's recovery was reduced only. Inasmuch as the jury found a general verdict for the defendant, it is evident that the jury found that the assured induced Collins to burn the property, which rendered the question of misrepresentation of ownership of a part of the property immaterial. The burden of proving the facts necessary to sustain such verdict being upon the defendant, and it having admitted plaintiff's cause of action, subject to the defense that the assured procured the burning of the property, it had the right under the law to open and conclude, and the court did not err in so holding.

The court, by its charge, having informed the jury of the effect of defendant's admission, specifically stating the facts admitted, and that such admitted facts entitled plaintiff to recover his entire demand unless one of the two defenses stated in its charge were made out—one of which, if established, would defeat the entire demand, the other only a part of it—all other defensive matters pleaded were eliminated from the consideration of the jury as effectually as if they had been erased from defendant's answer. Therefore the plaintiff could not have been prejudiced by the answer being read to the jury and taken with them in their retirement to consider their verdict. This case is easily distinguished from Ins. Co. v. Simpson, 28 S. W. 837. In that case, "taking the admission as made, the court could not have rendered judgment upon it, disposing of all the claims asserted by plaintiff, had defendant introduced no evidence in support of the defenses set up in its answer." In this case, taking the admission as made, if the defendant had introduced no evidence in support of its defenses, it would have been the duty of the court to have rendered judgment for plaintiff's entire demand, without his introducing any evidence at all.

The only exception to defendant's answer that has any relation to either of the issues submitted to the jury is the one to the allegations of misrepresentations of the assured as to his ownership of the Arctic Ice Compresser. None of the exceptions referred to the defense that Van Ordstrand procured the burning of the property. As the verdict shows this was the defense sustained, the plaintiff was not prejudiced by the failure of the court to sustain the exceptions. Railway v. Rather, 3 Tex. Civ. App. 72, 21 S. W. 951; Traction Co. v. Bryant, 70 S. W. 1015. Besides, the exception that related to the other issue submitted was not well taken. The charge of the court as effectually eliminated the allegations of the answer to which the other exceptions were directed as they could have been, had they been sustained.

Our conclusion of fact is, from reading and carefully considering the evidence, that Van Ordstrand caused the insured property to be burned by the negro Albert Collins. It is unnecessary for us to state the testimony on this issue. While it is conflicting, it is amply sufficient to sustain the verdict. If, independent of the verdict, we had reached a different conclusion, as the question was one for the jury to determine, we could not, in view of the evidence, disturb their finding. We conclude, therefore, that the assignment of error which complains of the court's failure to grant plaintiff a new trial upon the ground that the verdict is not supported by the evidence is not well taken.

Upon the trial a deposition of Maggie Dunman, taken before J. H. Sharpe, a notary public of Ellis county, on the 15th day of June, 1900, was read in evidence by the defendant. Another deposition of the same witness, taken under her present name (Mrs. H. Heather), on the 26th day of August, 1902, before the...