Mott v. Spring Garden Ins. Co.

• Decision Date: 08 February 1913
• Citation: 154 S.W. 658
• Parties: MOTT v. SPRING GARDEN INS. CO.
• Court: Texas Court of Appeals

154 S.W. 658

MOTT v. SPRING GARDEN INS. CO.

Court of Civil Appeals of Texas. Ft. Worth.

February 8, 1913.

Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.

Action by W. N. Mott against the Spring Garden Insurance Company. From judgment for defendant, plaintiff appeals. Affirmed.

E. N. Kirby, Kirby & Davidson, and J. F. Cunningham, all of Abilene, for appellant. Ben L. Cox, of Abilene, for appellee.

DUNKLIN, J.

W. N. Mott instituted this suit against the Spring Garden Insurance Company to recover $1,250, the amount named in a fire insurance policy issued by the defendant upon a certain dwelling house owned by him, situated in the town of Abilene. He alleged that the house was destroyed by fire while the policy was in force, and that the house was worth $1,500. In addition to a general demurrer and a general denial, the defendant pleaded specially that the policy upon which the suit was instituted, together with another policy issued by another company upon furniture in the house for $750, which was in excess of the value of the furniture, were procured by the plaintiff with the fraudulent design and purpose to burn the house and its contents, and to thereby defraud the companies issuing the policies, and that thereafter plaintiff burned, and procured the burning of, the house and its contents. Upon the trial, the defendant admitted that plaintiff had a good cause of action, as set forth in his petition, except in so far as it might be defeated in whole by the facts set out in the special plea of fraud contained in its answer and established by proof, constituting a valid defense, and claimed the right to open and conclude the introduction of evidence and argument of the case. A judgment was rendered in favor of the defendant, and the plaintiff has appealed.

The proof showed that the fire destroyed the house and contents.

T. C. Weir, sheriff of Taylor county, in which the property was situated, was introduced as a witness for the defendant and testified that, in his investigation to determine the origin of the fire, he saw the plaintiff on the morning after the fire, and took him to the county attorney's office where he was questioned concerning the incidents which witness thought might bear upon the cause of the fire. Over plaintiff's objection, he was then permitted to testify as follows: "I asked him (plaintiff) if he would like for the officers here to find out who was destroying his and Charlie's property here in this town by fire. I asked him if he would like for the officers to investigate his fires he had had. He said, `By God,' he would not. He said he was getting tired of people accusing him of destroying his property. He said he had never had but this fire. I says, `Isn't it a fact that you had a house destroyed out here near the Christian College?' He said he believed he did have, but that Hasha was the contractor, and the insurance was made to Hasha, and he never received a cent out of it. I says, `Is it not a fact that you had a house destroyed west of Grape street on the car line, and out some distance west of Grape street, fronting on the south, fronting south on the car line; that you received a good big payment on the place, and the house was insured in your favor, and shortly after the man moved there the house was burned?' He said he believed that was a fact. I asked him who it was that had bought that place, and he said he did not know, he had forgotten. I said, `Haven't you any record of it?' and he said, `No, I have not.' I says, `Isn't it a fact that you sold that house to that man and got the insurance and threw the papers away, the contract away?' and he says, `Well, I don't know what became of it, and I don't know the man's name.'" The objection urged to the admission of this testimony was as follows: "Because as to any other fires than the one in controversy it was irrelevant and immaterial and calculated to prejudice the minds of the jury against the plaintiff." Charlie, referred to by the sheriff in the testimony quoted, was plaintiff's son. Plaintiff's unwillingness for the officers to investigate the fire which destroyed his own property was certainly admissible upon the plea that that fire had been started by him.

The objection was made to the testimony as a whole; and, if a part of it was admissible, the assignment now under discussion could not be sustained, even though it should be held that other portions of the testimony were improperly admitted, a question which it is not necessary to decide.

Furthermore, an affidavit made by the plaintiff before the county attorney soon after the fire, and containing substantially the same statements by the plaintiff as were testified to by Weir, was admitted in evidence, and no bill of exception to the admission of the same appears in the record. This...