131 S.W. 412 | Tex. | 1910
This suit was brought by defendant in error, the South Texas Rice Company, a corporation organized for the purpose of growing rice, against J.E. Broussard and others, his associates in the business of milling rice, to recover of the defendants the value of 1315 sacks of rice, which had been destroyed by fire while in the possession of defendants. The defense was that while the rice had been placed with the defendants for the purpose of being milled, that defendants had for the purpose of their own protection charged two cents per sack for the protection of their interest in the rice upon which they had a lien for advances and that they had insured the rice for enough to cover the indebtedness to them and had accounted to the plaintiff for the proceeds of such insurance.
The facts are, that the plaintiff had for a number of years taken their rice to the mill of the defendants to be milled. For each of the years the defendants charged a certain sum for the purpose of insurance. There was nothing to show whether the insurance was total or partial. The entry on the account rendered to the plaintiff was simply to charge it with two cents per sack for insurance. There *537 is no evidence that this was ever explained to plaintiff, from which it seems to us that the plaintiff was thereby induced to believe that it was the custom of the defendants to insure the rice placed with them for milling and for its full value.
The undisputed facts of the case are simply these: The agents of the plaintiff had for a number of years been accustomed to take its rice to the defendant's mill to be milled; during all this time defendant had charged them two cents per sack for insurance and had rendered the plaintiff an account in which two cents per sack was charged as an amount paid for insurance and the accounts were settled upon this basis. When the fire occurred by which the rice was destroyed it was found insured to the full amount which two cents per sack would pay, but unfortunately this was not enough to cover the entire loss. The contention of the plaintiff is that the previous charges of two cents per sack were presumably for the full value of the rice and that therefore it was induced to believe and did believe that the custom of the defendant was to insure the rice for its full value; and that if they failed to do so they became responsible to make good the deficiency. Area v. Milliken, 35 La. Ann., 1150; Vickery v. Lanier, 1 Met. (Ky.), 133; Thorne v. Deas, 4 John., 84; Smith v. Lasvilles, 2 Term Rep., 185; Ela v. French,
In Ela v. French, supra, the court holds that where it becomes the duty of a party to insure property and he fails to do so, the presumption is that the goods were to be insured for their full value. (See also Shoenfeld v. Fleisher,
We are inclined to think that the evidence in the case was not sufficient to show a custom of the mills near Beaumont to insure their customers' rice at its full value; but we find it unnecessary to decide that question.
The judgment is therefore affirmed.
Affirmed.
