87 S.W.2d 537 | Tex. App. | 1935
Defendant in error, J. L. Coleman, plaintiff below, instituted this suit against Franklin Fire Insurance Company of Philadelphia in the district court of Ellis county, to recover on a fire insurance policy issued to said Coleman on a dwelling house and household furniture located in Ennis, Ellis county, Tex. He alleged that on the 10th day of September, 1931, said insurance company issued its policy covering said property to an amount not exceeding $1,500 on the dwelling and $700 on the household goods; that on the 27th day of May, 1932, the property was destroyed by fire and plaintiff sustained damages exceeding the maximum amount of the policy, to wit, $2,200. Plaintiff in error pleaded a general demurrer, certain special exceptions, a general denial, and specifically pleaded that the policy named as mortgagee therein Mrs. Sarah L. Hill, and that it had paid to Mrs. Hill the amount of her loss, to wit, $579.56. It further pleaded that the assured had entered into an adjustment agreement, fixing the loss sustained from the fire at $1,032.73. The insurance company thereafter agreed that if it was liable at all, the amount for which it was liable was the sum of $1,032.73, less the sum of $579.56 paid the mortgagee, or the sum of $453.17.
The case was submitted to the jury on three special issues as follows:
"No. 1: Do you find from a preponderance of the evidence that plaintiff, J. L. Coleman, set fire to and burned his house on May 27, 1932?" To which the jury answered: "No."
"No. 2: Do you find from a preponderance of the evidence that plaintiff, J. L. Coleman, procured some other person to set fire to and burn said house on May 27, 1932 ?" To which the jury answered: "No."
"No. 3: Do you find from a preponderance of the evidence that plaintiff, J. L. Coleman, consented to the setting of fire of and burning of said house on May 27, 1932 ?" To which the jury answered: "No."
In conformity to the answers of the jury to said special issues, the court awarded *538 defendant in error J. L. Coleman a recovery against said insurance company in the sum of $400, with interest thereon from the 27th day of May, 1932, at the rate of 6 per cent. per annum, and judgment in favor of Texas Loan Company, intervener herein, against said insurance company in the sum of $53.17.
The chief defense of plaintiff in error to this suit was that defendant in error burned or procured the burning of his own property. Each of said issues was answered in favor of defendant in error. J. L. Roberts was called by the insurance company as a witness in its behalf, and testified, in part, as follows:
"Q. State your name. A. J. L. Roberts.
"Q. You are known as John Roberts? A. Yes sir.
"Q. Where do you live? A. In Ennis.
"Q. How long have you lived there? A. Thirty-five years, all my life.
"Q. Were you living in Ennis at the time J. L. Coleman's house burned? A. Yes sir.
"Q. Did you hold any official position in Ennis at that time? A. Yes sir, I was constable.
"Q. After the fire did you make any investigation? A. I arrestedColeman, yes sir."
It is clear, we think, that this evidence was admitted inadvertently. It is thus seen that the testimony of Roberts, coming before the jury at the time it did, came at a time when the issue of arson was squarely before the jury, and was highly prejudicial and inflammatory to plaintiff's rights. 22 C. J. pp. 195, 196, 197; Houston T. C. R. Co. v. Hopson (Tex. Civ. App.)
Plaintiff in error further complains of the action of the trial court in allowing interest on said recovery from the date of the fire, instead of sixty days after proof of loss, as provided for in the *539 policy. Defendant in error has filed a remittitur in this court of said interest item.
Therefore, the judgment of the trial court will be reformed so as to allow defendant in error, J. L. Coleman, a recovery against plaintiff in error, Franklin Fire Insurance Company, in the sum of $400, and Texas Loan Company, intervener herein, a recovery against Franklin Fire Insurance Company in the sum of $53.17, with interest thereon at the rate of 6 per cent. per annum from the 21st day of October, 1933, the date of judgment in the trial court; and as so reformed, the judgment of the trial court is affirmed. Springfield Fire Marine Ins. Co. v. Brown (Tex. Civ. App.)