O'Leary v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 30 May 1917
• Docket Number: (No. 229.)
• Citation: 196 S.W. 575
• Parties: O'LEARY v. ST. PAUL FIRE & MARINE INS. CO.
• Court: Texas Court of Appeals

Page 575

196 S.W. 575

O'LEARY v. ST. PAUL FIRE & MARINE INS. CO.

(No. 229.)

Court of Civil Appeals of Texas. Beaumont.

May 30, 1917.

Rehearing Denied June 27, 1917.

Appeal from Harris County Court; Murray B. Jones, Judge.

Suit by D. L. O'Leary against the St. Paul Fire & Marine Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Woods, King & John, of Houston, for appellant. Elliott Cage, of Houston, for appellee.

BROOKE, J.

This was a suit brought by appellant against appellee on a policy of insurance, issued by appellee to appellant. The issues raised by the pleadings are broad enough to support the court's findings of fact, in our opinion, and it is therefore unnecessary to enter into any statement of the contents of the pleadings. The court's findings of fact, filed at request of appellant, read as follows:

"I find that on or about July 8, 1915, plaintiff and defendant entered into a contract, by the terms of which defendant insured an automobile belonging to the plaintiff in the sum of $750, the policy covering damage to the automobile and equipment in excess of $25 by being in collision; during the period insured, with any other automobile, vehicle or object, excluding: (1) damages or loss to tires (unless the total damage caused by the collision to the automobile herein described exceeds the sum of $200); (2) damage caused by striking any portion of the roadbed or by striking the rails or ties of the street, steam, or electric railroads; (3) loss or damage while the automobile insured is being operated in any time or speed contest or while being operated by any person under the age of 16 or age limit by fire. The policy also covered damage by fire, and in consideration of a premium of $28.05 insured the plaintiff's automobile for the term of one year from July 8, 1915.

"I find that plaintiff paid for said car the sum of $850.

"I find that on or about August 14, 1915, the car was in a collision and was damaged by said collision in the sum of $50, that the defendant settled with said plaintiff for said damage, but that the car had not been repaired at the time of the accident which forms the basis of this suit.

"I find that on or about August 16, 1915, while said car was in the garage of the McDade Automobile Company for the purpose of being repaired, the building in which said automobile company's garage was located collapsed, the second floor of the building falling upon the said automobile and damaging it; that the building was caused to collapse by a severe storm.

"I find that the damage to the automobile sued for in this case was caused by the second floor of the building falling upon said automobile, and that said automobile was damaged in the sum of $300, after deducting $25 as provided by the policy, and taking into consideration the deterioration caused by the use of the car.

"I find that no proofs of loss were furnished by plaintiff, but that defendant denied liability under the policy and has never paid the plaintiff for the damage to the car."

Judgment was entered in favor of defendant in the court below. Appellant, in due season, filed motion for new trial, which was overruled, plaintiff excepting, and giving notice of appeal to this court, and the case is now properly before this court for...