Hawkeye Securities Ins. v. Cashion

LITTLER, J. This suit was brought by Mrs. Velma Cashion, joined by her husband, to recover the alleged value of household effects destroyed by fire on the 7th day of December, 1923, and alleged to have been covered by a policy of insurance in the sum of $1,250 issued by defendant. The defendant answered by general denial, and by special plea, in substance, that the policy sued on contains a provision that it shall be void if the insured has concealed or misrepresented, in writing ór otherwise, any material fact or circumstance concerning this insurance of the subject’thereof. The answer declares a breach of this provision of the policy, and alleges particularly that the value of the property insured was grossly and materially overstated by the insured at the time the policy was issued. The case was tried upon special issues as follows: Special Issue No. 1: “Did Mrs. Velma Cash-ion present to John I. Chesley, agent for the defendant company, after the fire in evidence in this case, an itemized statement of loss, sworn to by her, as pleaded by the defendant in this case? Answer Yes or No.” Answer: “Yes.” Special Issue No. 2: “If you have answered the above question in the affirmative, then answer: Was such statement presented by Mrs. Velma Cashion to said John I. Chesley for the purpose of procuring the payment by the insurance company of the $1,250 insurance provided for in the policy offered in evidence in this case, for loss sustained on household goods, clothing, furniture, etc.? Answer Yes or No.” Answer: “Yes.” Special Issue No 3: “If you have answered special issue No. 1 in the affirmative, then answer: Was such statement, as presented by Mrs. Velma Cashion to John I. Chesley, substantially true as to items? Answer Yes or No.” Answer: “Yes.” Special Issue No. 4: “If you have answered special issue No. 1 in the affirmative, then answer: Was such statement, as presented by Mrs. Velma Cashion to John I. Chesley, substantially true as to values? Answer Yes or No.” Answer: “Yes.” Special Issue No. 5: “What was the reasonable value of the property owned by plaintiffs, damaged and destroyed by fire on December 24th, A. D. 1923? Answer in dollars and cents.” Answer: “$1,500.” Upon the findings of the jury, thus made special issues, the court rendered judgment in favor of plaintiffs against defendant for the sum of $1,250, with interest from the 4th day of April, A. D. 1923, at the rate of 6 per cent, per annum. Appellant has four assignments of error; however, we will only discuss assignments Nos. 3 and 4, as we consider Nos. 1 and 2 not well taken. Assignment No. 3 is as follows: “The court erred in refusing to give to the jury defendant’s special charge No.' 1, which was as follows: ‘If you find that any household goods, clothing or furniture was damaged by fire, but was not wholly destroyed in the fire, upon which plaintiff is suing in this case, [299] and you find that defendant is liable in damages to said plaintiff, then the measure of damages under this contract is the difference between the value of the property whole and damaged, within the amount of the policy.’ ” The statement of facts filed in this cause show that three witnesses, to wit, E. O. Hendricks, W. H. Norton, and R. F. Bettis, testified that they examined the buildings upon the night of the fire, and that there were two rooms in the building not damaged by fire, but that the furniture and clothing in said rooms were smoked and damaged by water; and the said Bettis further testified that in the northwest room everything was in good shape. We are of the opinion said testimony presented issue of fact, and that the trial court erred in refusing to give special charge No. 1 offered by defendant, as said charge presented the true measure of damages. German Insurance Co. v. Everett, 18 Tex. Civ. App. 514, 46 S. W. 95. Appellant complains of the action of the court in giving judgment against appellant for the sum of $1,250, same being based upon the answer to the jury in special issue No. 5, for the reason that it appears from said special issue and the answer thereto that the jury placed the value of the property, belonging to plaintiff, burned and damaged, at $1,500, and there are no findings of the jury as to the amount of damage or the value of the goods before and after the fire; but it was error for the court to base his judgment of the damage of $1,250 upon the answer to special issue No. 5. We conclude that the court was not justified in giving judgment for $1,250, based upon the answer of the jury to special issue No. 5. We do not deem it necessary to consider any further assignments of error, as they perhaps will not arise upon another trial of this cause. On account of the errors above cited, the case is reversed and remanded.