Insurance Company v. Shearman

STEPHENS, Associate Justice. This appeal is from a judgment on a special verdict in favor of appellee in the sum of $1700, the amount of a fire insurance policy issued by appellant company to M. A. Parish, January 15, 1896, and assigned to appellee after the fire, which, on May 23, 1896, in the city of Denison, destroyed the stock of merchandise and *457 store fixtures insured, then of the aggregate value of $3659.63, as found by the jury. It is first insisted that the judgment must be reversed because the special verdict failed to find the fact of the alleged assignment of the policy, though this was not denied under oath, but only put in issue, if at all, by the general denial. After submitting the special issues, which did not include that of the assignment of the policy, the charge states, that “It is agreed by the parties that the foregoing findings of fact you are directed to make and the foregoing questions cover all the material issues of fact involved in this cause.” This statement was controverted for the first time in the motion for a new trial. The statement of facts contains no such agreement, and unless it is therefore to be inferred that none was made, the record is silent upon the subject. Ho exception was taken to the charge, nor did appellant request the court to submit this issue to the jury. At the last session of the Legislature, in order to cure such technical defects in special verdicts, a law was enacted which provides: “But the failure to submit any issue shall not be. deemed a ground for- reversal of the judgment upon appeal or writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding.” Gen. Laws, Called Session, p. 15; Sayles’ (New) Civ. Stats., art. 1331. The statute regulating the assignment of written instruments provides that when sued upon by the assignee the assignment shall be regarded as fully proved, unless the defendant shall deny in his plea that the same is genuine, etc. Sayles’ (New) Civ. Stats., art. 313. The policy, with the assignment indorsed thereon, was read in evidence. We conclude, therefore, that the above quoted Act of-1897 cures the technical defect complained of, although it was passed after the case was tried. Hence we need not determine whether, in the absence of this" enactment, the verdict would have sustained the judgment. It is laid down by Mr. Cooley in his standard work on Constitutional Limitation, that “if a case is appealed, and pending the appeal the law is changed., the appellate court must dispose of the case under the law in force when its decision is"rendered.” Cool. Const. Lim., p. 469. As the amendment in question takes the place of article 1331 of our Revised Statutes, regulating the procedure in cases of special verdicts,' we have no law to govern us unless we follow the amendment. Such amendments of statutes prescribing methods of procedure do not fall within our constitutional inhibition of retroactive laws. It is even' further laid down by Mr. Cooley, that “a statutory right to have eases reviewed on appeal may be taken away by a repeal of the statute, even *458 as to cases which had been previously appealed.” Cool. Const. Lim., pp. 473, 473. The remaining contentions of appellant arise upon the construction and application of thé following forfeiture clauses of the policy, which we quote from its brief: “This entire policy, unless otherwise provided by agreement indorsed herein or added hereto, shall be void if * * * illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein, or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises * * * gasoline.” “This entire policy shall be void * * * in ease of any fraud or false swearing by the insured-touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” The material facts relied on and found by the special verdict to show a forfeiture under the clause first quoted, were thus correctly summarized in the fourth paragraph of the court’s charge, reading: “During the time this policy was in force, M. A. Parish, having procured a recipe for the manufacture of what is called -French electric fluid, purchased a gallon of gasoline and used it in making some of this fluid, which was made by mixing in a gallon of gasoline, a double handful of salt, a handful of soda, and a piece of gum camphor as large as the end of one’s thumb. She placed this fluid in a five-gallon can, which she kept in the coal shed on said tract of land, separate and apart from said building. From this five-gallon can she would put into a gallon can enough of said fluid to fill a lamp which was used in lighting said storehouse at night. She kept said gallon can on a shelf in the back part of the store. Other lamps were used in lighting the store at night, but in all of these coal oil was used. She had used up all of this French electric fluid that she had on hand several days before the fire occurred, and was not using any of the same at the time of the fire.” The verdict contained the further finding: “That no illuminating gas was generated in said building for use therein, and that the light was made by the burning of said fluid direct as a coal oil lamp; burns coal oil.” We are of opinion that the undisputed facts set forth in the charge, as quoted above, not only warranted this finding, but also the further conclusion that appellant had failed to show that gasoline had been “kept, used, or allowed on the above described premises.” As forfeitures are not favored, the rule of strict construction applies, and forbids a resort to presumption or inference in establishing a forfeiture. If gasoline and French electric fluid were one and the same thing, it was incumbent on appellant to prove it. In the absence of expert testimony, we have no means of determining, without a resort to presumption, whether the gasoline lost or retained its identity when it became a constituent of the new compound or mixture. That the burden was on appellant to establish by proof the precise fact or facts relied on to show a forfeiture, *459 seems to be well settled, as will appear from numerous cases cited in appellee’s brief. But conceding that the evidence did show that an insignificant quantity of gasoline had been used on the premises, though none was there when the fire occurred, appellee yet contends that no substantial violation of the terms of the policy were proven, and cites quite an array' of authority in support of this contention. Without, however, announcing any definite conclusion thereon, we hold that appellant failed to show a breach of the clause in question; and hence overrule all the assignments of errror relating thereto. We are thus brought to the remaining issue of fraud and false swearing. The contention of appellant was and is that in making out the sworn proofs of loss "an excessive value was placed upon the property destroyed, but we hardly think the testimony would have warranted, much less required, a finding of fraud or" false swearing. The method of arriving at the value was fully shown in the proofs of loss, the value there stated was only about $1600 above what the jury found it to be, and no motive appears for the excessive valuation, as the value proven on the trial and fixed by the verdict was nearly $8000 in excess of the amount of the policy. The charge submitting this issue, to which error is assigned, taken as a whole, stated the law with substantial accuracy. Something more than swearing to whát is not true must be shown to make out a case of false swearing within the meaning "of the policy; and this distinction the charge recognized and in effect stated, at least sufficiently with reference to the facts of this ease. Ins. Co. v. Starr, 71 Texas, 733; Ins. Co. v. Swan, 41 S. W. Rep., 519. The judgment is affirmed. Affirmed. ON MOTION FOB BEHEAEING. January 29, 1898.