51 Tex. 89 | Tex. | 1879
The policy of fire insurance on which this suit was founded contains the following clause: * * * “ Or if the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain for more than thirty days, without notice tó and consent of this company, in writing, * * * then and in every such case this policy shall be void.” The defense was, that at the time the house insured was destroyed by fire it had been left vacant and unoccupied for more than thirty days, without notice to, or the knowledge or consent of, the company or its agents. Whether the house had so been left vacant, and whether, as alleged by plaintiff-, the vacancies, if any, had been with the "knowledge and assent of the company or its agents, were the issues of fact raised by the pleadings. There was evidence in regard to the vacancy entitling the defendant to have that issue fairly submitted to the jury. The charge given by the court was as follows: “If you believe from the evidence that the house was destroyed by fire before the 19th of April, 1876, and that the house was not vacant or unoccupied for a period of thirty days before the fire, and that the premium was paid, then the plaintiff would be entitled to your verdict for the proven value of the house, with interest thereon, at the rate of eight per cent, per annum, from the 9th of May, 1876, to the present time. If you believe from the evidence that the house was vacant or unoccupied for a period of thirty days before the fire, and if you further believe from the evidence
It is objected by appellant that the only assignments of error which embrace this question are too general. They are as follows: 1st. The refusal of the court to give (he charges to the jury set out in the written charges asked, numbered from one to five inclusive, and made part of the record. 2d. That the court erred in the charge to the jury, the same not presenting the law on the issue before them.
These assignments, especially the second, are objectionable as too general. They were made, however, before the present rules of court took effect, and are not to be tested by those rules. We are aware of no case, however, of an assignment of errors to the refusal of charges asked, where this court has refused to consider it, if any one of the charges asked and refused was necessary to the proper presentation of the substantial issue in the case. Where the charges asked were numerous, and the justice of the case did not seem to require it, the court has not felt called upon to revise them under such an assignment. (Fisk v. Wilson, 15 Tex., 435.) In this case, the charge as given embodied a most material error. The defendant asked, and was refused, a charge correcting that error. The right of the defendant to a verdict was thereby made to depend upon an immaterial issue, and not upon the true issue. If not a fundamental error, it is, at all events, one so important that we cannot decline to consider it under the first assignment.
This error entitles the defendant to another trial. In his brief filed after the case was advanced, appellant has presented only his first and second assignments of error, and wre do not propose to consider other questions under those indefinite assignments, or questions not presented in his brief.
Our attention has been called to the fact that in the transcript the statement of facts is followed by several sets of interrogatories and answers. These constitute no part of the record, and the additional costs growing out of their improper
Reversed and remanded.