National Live Stock Ins. Co. v. Warren

WILLSON, C. J. (after stating the facts as above). [1,2] The trial court reduced to writing findings of fact made by him. Among them was not a specific finding as to the .cause of the death of the horse, but there was one that he “died very suddenly on the night of November 22, 1914, without any fault upon the part of H. A. Warren, and without having shown signs of any previous illness.” The contention, and the only one, made on this appeal, is that the finding specified “was not a sufficient finding of fact to authorize the court to render judgment on the policy of insurance herein sued on.” If it should be conceded, and we think it must be, that the finding left undetermined the question as to whether the death of the horse was from a cause provided against in the policy or not, it would not follow that the judgment therefore should be reversed; for, in the absence of a finding determining that question, if there was testimony which would have authorized the trial court to find that his death was from such a cause, this court, in support of the judgment, would have to presume that he so found. Malone v. Fisher, 71 S. W. 996; Fitzhugh v. Land Co., 81 Tex. 306, 16 S. W. 1078; Spencer v. James, 10 Tex. Civ. App. 327, 31 S. W. 540, 43 S. W. 556; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889. If the burden was on appellee to show not only the death of the horse, but also the cause of his death, we think the trial court, in the absence, as was the case, of testimony tending to show, or even suggesting, that his death was due to one of the excepted causes, had a right to infer from the testimony of appellee set out in the statement above that the horse died from disease or accidental injuries provided against in the policy. The circumstances as to his death shown by that testimony to our minds negatived an inference therefrom that he died from any of the excepted causes, but indicated, instead, that his death was due to sudden illness or accidental injuries covered by the policy. The judgment is affirmed. Footnotes [1] @=sFor other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes