Republic Ins. Co. v. Dickson

• Decision Date: 19 November 1937
• Docket Number: No. 3119.,3119.
• Citation: 110 S.W.2d 642
• Parties: REPUBLIC INS. CO. v. DICKSON.
• Court: Texas Court of Appeals

110 S.W.2d 642

REPUBLIC INS. CO. v. DICKSON.

No. 3119.

Court of Civil Appeals of Texas. Beaumont.

November 19, 1937.

Rehearing Denied December 8, 1937.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action by J. W. Dickson against the Republic Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for another trial.

Smithdeal, Shook, Bowyer & Lefkowitz, of Dallas, for appellant.

Dallas Ivey, of Center, for appellee.

O'QUINN, Justice.

This is an appeal by the Republic Insurance Company from a judgment against it in favor of J. W. Dickson on a fire insurance policy. This is the third appeal in this case. The first is reported in (Tex.Civ. App.) 69 S.W.2d 599. The second in (Tex. Civ.App.) 87 S.W.2d 899. The facts on this appeal are practically as in each of the former appeals. For brevity we refer to the above reports for the statement of the facts involved.

The plaintiff's petition herein identified the policy and stated the obligation thereof in general terms. The policy was in the form known as the "Texas Standard Fire Policy," which is prescribed by the State Insurance Commission pursuant to statute. The policy contained the following provision, making exceptions from the general liability imposed by the policy: "This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is in danger by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion or any kind, or lightening; but liability for direct damage by lightening may be assumed by specific agreement hereon."

Appellant's first assignment of error complains that appellee's petition failed to allege that the fire did not occur under any of the conditions excepted from the obligations of the policy. In his petition appellee alleged: "That the fire was not the result of a cause for which the defendant was exempted from liability by the terms of the policy."

It is well settled that in suits on policies such as here the plaintiff must allege and prove facts that bring the loss within the general obligations of the policy and that take it out of the specified exceptions from liability. Coyle v. Palatine Insurance Co. (Tex.Com.App.) 222 S.W. 973, 975. Chicago Fire & Marine Ins. Co. v. Foley (Tex. Civ.App.) 58 S.W.2d 174; American Insurance Co. v. Maddox (Tex.Civ.App.) 60 S.W.2d 1074; Boston Insurance Co. v. Fitzpatrick (Tex.Civ.App.) 75 S.W.2d 897; Pelican Insurance Co. v. Co-operative Ass'n, 77 Tex. 225, 13 S.W. 980; Phoenix Insurance Co. v. Boren, 83 Tex. 97, 18 S.W. 484. We think the allegation above quoted from plaintiff's petition is good as against a general demurrer, but, after a careful inspection of the record, we fail to find any proof to sustain the allegation. The allegation without proof to sustain it is without effect. As was stated by Judge Phillips, in Coyle v. Palatine Insurance Co., supra: "Without such proof, had it been required, evidence of a loss within the terms of the contract would have been incomplete, and hence liability under the contract would not have been established. Such exceptions have not the character of conditions subsequent. They are written into the contract to prevent their subject-matter becoming confused with its general portion. Their effect is to declare that there shall be no liability under the contract which is not clear and independent of them. The burden of establishing such a liability is upon him who asserts it. The matter presented by such exceptions in the contract is therefore not defensive. In its essential nature it is affirmative. It is made so by the terms of the contract. Such is the settled rule in this court." The assignment must be sustained.

Appellant, by its 13, 14, 15, and 16 assignments, complains that the court erred in allowing appellee to make a second speech to the jury when appellant had not addressed the jury; that is, to make an opening speech to the jury and when, because of appellee's counsel not discussing the issues submitted in the court's charge, appellant's counsel did not offer or make any speech, then to allow appellee's counsel, over the objections of appellant, to make a second speech in which he fully discussed each issue (30 of them) and the evidence adduced, covering the whole case, which he had not done in his opening speech. Relative to these assignments, the record reflects the following: When the evidence was concluded and the court had delivered his charge to the jury submitting 30 special issues appellant's counsel made his opening speech to the jury consuming some ten minutes of time, discussing the case generally, but not discussing or referring to any of the special issues, or relating any of the evidence to any of them, and closing stated to the jury and to appellant's counsel that he would in his closing argument take up and discuss the several special issues. Counsel for appellant then stated to the court that he would not argue the case, whereupon the court announced that whether counsel for appellant argued the case or not that counsel for appellee would be permitted to close the argument and to discuss the special issues, and that in view of this ruling if counsel for appellant desired to' argue the case he could do so. Counsel for appellant thereupon excepted to the ruling, and declined to address the jury. Counsel, for appellee under the ruling of the court and over the objections of appellant, then proceeded to again address the jury and took up and fully discussed each of the thirty special issues and the evidence relating to them, in a speech of four times the length of his opening argument. All this appears by bill of exception duly preserved and approved by the court with qualifications. The qualifications are in substance that no motion or request was made to compel counsel for appellee to fully open his case by discussing the issues and facts relied upon to establish his right to recover, and that counsel for appellant had the opportunity to have addressed the jury.

Rule 36 governing trials in district and county courts provides:

"Trial; Argument, Order of.

"In all argument, and especially in argument on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side."

It has been held where counsel for plaintiff makes an opening argument and discussed the issue relied upon for recovery and counsel for defendant then declined to argue the case, and the court refused permission of another counsel for plaintiff to make another and further argument for plaintiff, that an absolute right to further argument did not exist, and that under the facts there it was within the discretion of the court to permit...