Northwestern Nat. Ins. Co. v. Westmoreland

• Decision Date: 09 October 1919
• Docket Number: (No. 1003.)
• Citation: Northwestern Nat. Ins. Co. v. Westmoreland, 215 S.W. 471 (Tex. App. 1919)
• Parties: NORTHWESTERN NAT. INS. CO. v. WESTMORELAND.
• Court: Texas Court of Appeals

215 S.W. 471

NORTHWESTERN NAT. INS. CO. v.WESTMORELAND.

(No. 1003.)

Court of Civil Appeals of Texas. El Paso.

October 9, 1919.

Rehearing Denied November 13, 1919.

Error from District Court, Midland County; Chas. Gibbs, Judge.

Action by J. J. Westmoreland against the Northwestern National Insurance Company.Judgment for plaintiff, and defendant brings error.Reversed and remanded.

Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.

Ritchie & Cousins, of Mineral Wells, and R. B. Cousins, Jr., of Thurber, for defendant in error.

HARPER, C. J.

Appellant issued its policy in favor of appellee, insuring a building against fire in the sum of $2,500.

The building was destroyed.Appellee brought this action for the full amount of the policy, and upon verdict of the jury in his favor judgment was rendered for the full amount sued for, from which it comes to this court for review.The defense pleaded and urged being that the building was destroyed by an explosion prior to any fire, by reason thereof the insurance immediately ceased because of the following provisions contained in the contract:

"This company shall not be liable for loss caused directly or indirectly by invasion, * * * by explosion of any kind."

"If a building or any part thereof fall except as a result of fire all insurance by this policy on such building or its contents shall immediately cease."

The court did not err, as charged in the first assignment, in refusing to give the requested peremptory instruction for defendant.The facts in this case required submission of the issues to the jury by appropriate instructions.

The first question is: Upon whom rests the burden of proof in suits upon policies containing exception clauses such as those quoted above?

The Supreme Court of this state in the case of Travelers' Insurance Co. v. Harris(Com. App.)212 S. W. 933, has settled the question by holding that—

"The burden [of proof] rests upon the plaintiff to show that her cause of action does not fall within the excepting clause."

The question then arises, Was the charge on the burden of proof submitted sufficient, as urged by appellee?And the following portions of the court's charge are relied upon:

"If you believe from the evidence in this case that fire broke out, or was set to said building in question, on the occasion in question, and that as a direct result of said fire so breaking out in said building or being set to said building an explosion occurred which wrecked the said building, and if you further find from the evidence that as a result of said fire and said explosion the plaintiff's building was destroyed, then, and in such event, you will find for the plaintiff, and your verdict will be: `We the jury find for the plaintiff.'

"If you believe from the evidence that an explosion occurred in or near the said building in...