Potomac Ins. Co. v. Easley

• Decision Date: 04 January 1928
• Docket Number: (No. 835-4896.)
• Citation: 1 S.W.2d 263
• Parties: POTOMAC INS. CO. v. EASLEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

1 S.W.2d 263

POTOMAC INS. CO. v. EASLEY.^*

(No. 835-4896.)

Commission of Appeals of Texas, Section B.

January 4, 1928.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by J. M. Easley against the Potomac Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (293 S. W. 346), and defendant brings error. Reformed and affirmed.

E. G. Senter, of Dallas, for plaintiff in error.

Scarborough & Wilson, of Abilene, for defendant in error.

SPEER, J.

This is an action by defendant in error against plaintiff in error to recover for a loss under a hail insurance contract upon a crop of cotton planted by defendant in error in the year 1925. There was a recovery in the district court for the face of the policy, $1,920, and on appeal that judgment was affirmed. 293 S. W. 346.

The cause was submitted in the trial court upon two issues:

"(1) What was the damage, if any, in dollars and cents to the unopen cotton? (2) What was the damage, if any, in dollars and cents to the open cotton?"

The aggregate of the findings exceeded the face of the policy, and judgment was rendered for the latter amount.

The writ of error was granted to review the holding that a recovery could be had, under the terms of the policy, for damages to open cotton. The Court of Civil Appeals refused to consider the insurance company's assignments of error attempting to raise this question, but did treat it as fundamental and held that the recovery upon the verdict was within the terms of the policy.

The policy insured the holder in a sum "not to exceed $4 per acre" upon 480 acres of cotton, aggregating $1,920.

It is nowhere expressly stipulated that the policy does not cover open cotton, but the contention of plaintiff in error is that such is the necessary construction. The contention of plaintiff in error is based upon the following stipulation:

"When cotton is insured, the liability of the company shall be reduced in the same proportion in which said crop or any part thereof matures or is reduced by picking, pulling, cutting, or other harvesting, or by being in any manner damaged or destroyed. When a boll opens it shall be considered matured."

While it is universally held in construing insurance policies that that interpretation most favorable to the insured will be adopted (Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35; Dorroh-Kelly Mercantile Co. v. Orient Insurance Co., 104 Tex. 199, 135 S. W. 1165), yet the rule of...