Transcontinental Ins. Co. v. Frazier

• Decision Date: 13 April 1933
• Docket Number: No. 1349.,1349.
• Citation: 60 S.W.2d 268
• Parties: TRANSCONTINENTAL INS. CO. OF NEW YORK v. FRAZIER et al.
• Court: Texas Court of Appeals

Page 268

60 S.W.2d 268

TRANSCONTINENTAL INS. CO. OF NEW YORK v. FRAZIER et al.

No. 1349.

Court of Civil Appeals of Texas. Waco.

April 13, 1933.

Rehearing Denied May 11, 1933.

Appeal from District Court, Limestone County; Lex Smith, Judge.

Action by W. H. Frazier against the Transcontinental Insurance Company of New York, in which J. F. Maddox intervened. From a judgment for plaintiff and intervener, defendant appeals.

Reversed and remanded.

Thompson, Knight, Baker & Harris, and Hubert W. Smith, all of Dallas, and Lewis M. Seay, of Groesbeck, for appellant.

Mr. and Mrs. C. S. Bradley, J. E. & B. L. Bradley, and L. W. Shepperd, all of Groesbeck, and W. M. White, of Mexia, for appellees.

ALEXANDER, Justice.

W. H. Frazier brought this suit against Transcontinental Insurance Company to recover on a fire insurance policy in the sum of $2,000 issued by the insurance company on a dwelling owned by Frazier. J. F. Maddox was the mortgagee and the policy was payable to him as his interest appeared. He intervened in the suit. The insurance company, in addition to entering a general denial, alleged that the policy had been canceled prior to the fire and that the property had become and remained unoccupied for a period of more than thirty days prior to the fire and that by reason thereof the policy was voided. A trial before a jury on special issues resulted in a verdict in favor of the plaintiff and intervener, and judgment was accordingly entered in favor of the plaintiff Frazier in the sum of $110.31 and in favor of the intervener, Maddox, for the sum of $1,900.59. The insurance company appealed.

The court did not submit to the jury any affirmative ground of recovery, but submitted defensive issues only. The appellees sought to recover for a total loss and the court allowed such recovery without submitting to the jury any issue as to the extent of the loss. The appellant contends that the court was not authorized to enter judgment for appellees without a finding on this issue. The appellant's general denial put appellees on proof of their allegation that the building was a total loss within the meaning of Revised Statutes, article 4929. National Union Fire Ins. Co. v. Richards (Tex. Civ. App.) 290 S. W. 912, par. 1. Since it was essential for the appellees to establish this issue as a necessary ground of recovery, the court had no authority to withdraw same from the jury and to make findings thereon favorable to appellees unless the issue was conclusively established. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; Dallas Hotel Co. v. Davison (Tex. Com. App.) 23 S.W.(2d) 708; International-Great N. R. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591; Federal Surety Co. v. Smith (Tex. Com. App.) 41 S. W.(2d) 210, at page 213, par. 11. An issue is not conclusively established unless the evidence is such that reasonable minds cannot differ as to the effect thereof. Daugherty v. Wiles (Tex. Com. App.) 207 S. W. 900, par. 1. The only witnesses who testified as to the extent of the loss were the plaintiff, Frazier, and the intervener, Maddox. Since these witnesses were parties to the suit, they were interested witnesses. The general rule, as established by the Supreme Court, is that where the witness is interested, his credibility and the weight to be given to his testimony is for the jury, and the court cannot withdraw from the jury the consideration of an issue established by his evidence alone. 17 Tex. Jur. 926; Thraves v. Hooser (Tex. Com. App.) 44 S.W.(2d) 916, par. 4; Goodrich v. Pandem Oil Corp. (Tex. Com. App.) 48 S.W. (2d) 606; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447, par. 5; Houston E. & W. T. Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 971; Sigmond Rothchild Co. v. Moore (Tex. Com. App.) 37 S.W.(2d) 121; Stone v. City of Wylie (Tex. Com. App.) 34 S.W.(2d) 842, par. 6; Farm & Home Savings & Loan Ass'n v. Muhl (Tex. Civ. App.) 37 S.W.(2d) 316 (writ refused); Mitchell v. Federal Mortgage Company (Tex. Civ. App.) 45 S.W.(2d) 649; Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276, 279, and cases there cited.

Furthermore, these witnesses did not testify that the building was wholly destroyed. Frazier testified that in his opinion the loss was total, but this was a conclusion of law. National Union Fire Ins. Co. v. Richards (Tex. Civ. App.) 290 S. W. 912, par. 10. Maddox testified that the front porch was still standing and that the only examination that he had made of the floors and sills was by looking through the windows. From this it is apparent that the walls were still standing. Since the building was not wholly destroyed, the real issue to be determined was whether the remnant of the building still standing was reasonably adapted for use as a basis from which to restore the building to the condition in which it was before the fire and that depended on whether a reasonably prudent person would use such remnant as a basis for restoring the building. Royal Ins. Co. v. McIntyre, 90 Tex. 170, 182, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797. Maddox did testify that the building looked to him like it was burned too badly to be used, but this was the mere opinion of the witness. The weight to be given to opinion evidence is for the jury. Roberts v. County of Robertson (Tex. Civ. App.) 48 S.W.(2d) 737, par. 7, and cases there cited. We are of the opinion that the court was without authority to enter a judgment on the verdict of the jury without a finding on the issue as to the extent of the loss.

The appellant complains of the refusal of the court to submit to the jury the issue as to whether the policy was canceled. The issue of cancellation arose in this way, the policy as issued was to run for one year from May 11, 1931. The policy provided that it could be canceled by the insurance company as to the mortgagee by giving him ten days' written notice and as to the owner by giving him five days' written notice. It further provided that if the policy should be canceled, the unearned portion of the premium should be returned. The building was damaged by three different fires. The first one occurred in May, 1931, and resulted in a loss of $25 which was adjusted and paid. The second one occurred on July 30, 1931. The parties agreed that this loss amounted to $710.54. On or about September 5, 1931, the company issued and delivered to Frazier a draft in the sum of $710.54 payable to Frazier, his wife, and Maddox, the mortgagee. This draft recited that it was accepted "in full satisfaction of all claims and demands for loss or damage incurred on or about July 30, 1931 under policy 14602 issued at Mexia, Texas, and the policy is hereby cancelled and surrendered." Frazier testified that the above quoted provision of the draft with reference to cancellation was inserted therein without his consent and that he refused to cash the draft for this reason. He further testified that at the time the draft was delivered to him, the company's agent informed him that the policy was still in force. He kept the draft in his possession until after the last fire which occurred on October 5, 1931. The insurance company introduced evidence tending to prove that the reason Frazier did not cash the draft was because he was negotiating with Maddox for a settlement of the amount due Maddox. At the time the draft was delivered to Frazier he was due an unearned premium of $5.15, in the event the policy was canceled. The company did not return the unearned premium, but the company's agent testified that at the time the draft was delivered, he informed Frazier that he was entitled to an unearned premium and Frazier stated that he would have to "have some more insurance and to give him credit for this $5.15." The agent gave him credit for the unearned premium, but no more insurance was taken out. The insurance company sought, in various ways, to have submitted to the jury the issue as to whether Frazier accepted the draft containing the cancellation provision in settlement of the loss caused by the second fire and whether the policy was canceled by mutual consent. The court refused to submit these issues.

If Frazier...