This is a suit upon a fire insurance policy in which appellee recovered judgment for the sum of $575. Under appropriate assignments and propositions ■raising the questions, appellant insists that plaintiff’s petition is subject to general demurrer because (1) there is no allegation that the policy of insurance was in force at the time the fire occurred; (2) there are no allegations setting out the substance of the policy nor the substantial terms thereof; (3) there are no allegations that plaintiff was the owner of the premises at the time of the ■ fire; (4) there is no allegation that plaintiff was the owner of the property claimed to be cоvered by the insurance at the date of the contract of insurance; and (5) the policy requires, as a condition precedent to liability, that the assured shall furnish proof of loss, and there is no aRegation showing a сompliance therewith.
Whatever criticism may be justly urged as against appellee’s pleading, we do not think that same is subject to objections that can be reached by general demurrer. We will first notice the questiоns raised by the first, third,
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timd fourth propositions. Appellant cites no autnority in support of his first proposition to the effect that appellee’s petition is subject to general demurrer because of the want of any аllegation that the policy was in effect at the time the fire occurred. The principal authorities cited in support of the third proposition, to the effect that said pleading is de-murrable because of the want of an allegation that plaintiff was the owner of the premises at the time of the fire, and of the fourth proposition, to the effect that said pleading is subject to general demurrer because there is no allegation that plaintiff was the owner of the property at the date of the contract of insurance, have been overruled or modified by later decisions. In Commercial Union Assur. Co. v. Dunbar,
The true rule, seems to be that, if a petition contain averments from which the fact of ownership at the time the policy is issued or at the time of the fire, or the fact of insurable interest at either time, can be reаsonably inferred from matters alleged, the petition is not subject to general demurrer. It is said that in a pleading, if sufficient be stated to enable the court to see that a good cause of action or ground of defеnse exists, however defectively stated, the insufficiency or defectiveness of the averment cannot be taken advantage of by a general demurrer. Northwestern National Insurance Co. v. Woodward, supra. If the cause of action attempted to be stated is so stated that it is amendable, it is good against a general demurrer. Erie Telegraph Co. v. Grimes,
Under his second proposition, appellant contends that plaintiff’s petition was subject to general demurrer because neither the substance nor the substantial terms of the policy were alleged. The first authority cited in support of this proposition is Commercial Union Assur. Co. v. Dunbar,
By its fifth proposition, appellant makes the point that the policy requires, as a condition precedent to any liability of the insurer, that the assured should furnish proof of Jоss, and that, where plaintiff’s petition, to which the policy was attached and made a part thereof, fails to allege a compliance therewith, such petition is demurrable. The proposition is not exactly applicable to the facts. The policy was not attached as an exhibit to the pleading. It is true that reference was made to, the terms of the policy, and complaint of this is made in'appellant’s sixth proposition. We sustain the point that the terms and provisions of the policy do not become a part of a pleading simply by a general reference to same, without being attached as an exhibit. We arе not prepared to hold, however, that the pleading was subject to general demurrer simply because plaintiff failed to allege the provision of the policy with reference to furnishing proofs of loss. I-Iad suсh allegation been made, then, we think it would have been necessary for plaintiff, in order to state a cause of action, to have *247 further alleged compliance with such provision, or facts, showing a waiver.
Aрpellant objected to the introduction in evidence of the policy of insurance. The ground of the objection was that plaintiff’s pleading did not set out the substantial terms thereof. The introduction in evidence of thе policy at once made manifest a very serious defect in the pleadings. The pleadings declared on an absolute obligation to pay the loss or damage; while the evidence showed the existencе of a condition precedent to any liability, whatever. While the rule as before stated is that so much of a contract as is essential to the cause of action should be set forth and no more, there is this qualificаtion, as stated by the same authority:
“If there is any part of an agreement which materially qualifies or varies the sense and legal effect of the parts set forth, care must be taken not to omit it in order to avoid a fatal variance.” 13 C. J. 720.
While the introduction of the policy was objected to on the ground that the substantial terms of same had not been alleged, without particular mention of the provision relative to furnishing proof of lоss, still we think it is our duty to pass upon the matter. In fact, it is perhaps fundamental error requiring consideration in the absence of objection. While the sufficiency of the pleading could not be tested by reference to the terms of the policy, we think there was such a variance between the terms of the policy alleged and the one introduced that the objection to its introduction should have been sustained. Niagara Falls Ins. Co. v. Lollar (Tex. Civ. App.)
It is not deemed necessary to discuss other propositions urged by appellant, except the twelfth and thirteenth. Such other propositions are simply passed without comment, on the assumption that thеy may not arise again.
By its twelfth and thirteenth propositions, appellant contends that, in a suit on a fire insurance policy which requires, as a condition precedent to liability thereunder, the assured shall within a defined period after the loss occurs furnish proof of loss to the insurer, it is necessary for plaintiff to allege and prove compliance on the part of the assured with such condition, or to allege and prove fаcts which would constitute a waiver. We have already disposed of that part of the contention complaining of the want of necessary pleadings. We sustain the point that, even if the policy was admissible in evidеnce, there was no evidence showing either a compliance with the proof of loss provision, or of any waiver thereof. A denial of liability before the expiration of the time in which proof of loss was tо be made, or a denial of liability at any time on any other ground than failure to furnish proof of loss, would be sufficient to show a waiver, but even this is not disclosed by the testimony. There is some evidence that an adjuster looked over the property after the fire. As to this adjuster, plaintiff himself testified:
“He did not give me an answer as to what they would do about the damages. They did not tell me they would pay or offer anything. * * * Mr. Trammel said the adjuster would allow me $20. I told Mr. Trammel I would not entertain the thought of that, and they have paid me nothing.”
The testimony in our opinion does not show such repudiation of the claim as would evidence a waiver of the provision. The only denial of liability shоwn is an answer of genera] denial that may have had reference to the failure to make proof of loss.
For the errors pointed out, the judgment of the lower court will be reversed, and the cause remanded.