Monarch Fire Ins. Co. v. Redmon
| Decision Date | 25 September 1937 |
| Docket Number | No. 12257.,12257. |
| Citation | 109 S.W.2d 177 |
| Parties | MONARCH FIRE INS. CO. v. REDMON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Grayson County; F. E. Wilcox, Judge.
Suit by Florence Redmon against the Monarch Fire Insurance Company. Judgment for plaintiff, and defendant appeals and plaintiff cross-assigns error.
Reversed and remanded.
William H. Neary, of Dallas, for appellant.
W. J. Durham, of Sherman, for appellee.
Florence Redmon filed this suit in a district court of Grayson county to recover of defendant, the Monarch Fire Insurance Company, for the loss by fire of a certain house and personal property, alleged to be owned by plaintiff and covered by defendant's policy issued to her, for and in her name, in the sum of $1,250 on the house and $500 on the personal property. There was a jury trial, resulting in a verdict and judgment for plaintiff and against defendant for the sum of $1,250, the coverage on the house, and denying to her the $500 coverage on the personal property. Defendant appeals and presents a number of assignments, and plaintiff urges cross-assignment on the action of the trial court in refusing to allow her judgment for the $500 coverage on the personal property.
The policy of insurance on which the suit was based was not attached to plaintiff's petition and was never introduced in evidence, nor was there any other proof to show its contents. The record shows that a policy was issued by defendant to cover all loss for damage to the house and household effects, in the sum stated. From a careful examination of the statement of facts, we find no disclosure that the policy was effective at the date of the fire.
It is elementary that, in any suit upon a written contract, such as a fire insurance policy, the burden of proof rests upon the plaintiff to establish, not only that the defendant was the insurance carrier, the amount of coverage, and that plaintiff has an insurable interest in the property covered, but that the loss complained of occurred while the alleged contract was in force. The plaintiff has, we think, established the elements of recovery, except that the fire occurred while the policy sued on was in force; there is no proof in the record to sustain that allegation, which is essential for plaintiff to recover.
Defendant interposed a general denial and special plea invoking certain provisions of the policy in defense of plaintiff's suit, which effectively places upon plaintiff the burden of proving his suit. Bauman v. Chambers, 91 Tex. 108, 41 S.W. 471. In the absence of the policy, or some showing in the record that the policy was effective at the time of the fire, the judgment cannot stand.
Furthermore, the plaintiff raised in pleadings and proof ultimate issues of fact, to the effect that, after the fire, she executed to the defendant a release from all liability on the policy of insurance, which release was the result of fear and threats made by the defendant and its agent and representative, Mr. Hodde. These facts were controverted by the defendant, hence, in submitting the issues to the jury, the trial court presented the following questions for its determination:
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