This is a companion case to that of the AEtna Insurance Company v. Texarkana National Bank, Trustee, et al,
The defendant has briefed three propositions based upon twelve assignments of error. The first and third propositions are in substance the sаme. The first is to the effect that the defendant’s policy did not become effective for the reason that the policy in the General Insurance Company of Nоrth America (for which the People’s policy was intended as a substitute) was never canceled according to its terms and provisions; and the third proposition makes the contention that, since it was necessary to recovery for the plaintiffs tо show that the cancellation of the General Insurance policy had been -accepted by both owner and mortgagee, and such not appearing from the undisputed evidence, the issue of such acceptance and ratificаtion should have been submitted to the jury.
In urging the third proposition the defendant in its brief refers tо the “statement and argument given under the first proposition” and they apply with equal fоrce to this one. These propositions have been discussed fully in our opinion rеferred to of date April 28th,
The second proposition presented was nоt urged in the appeal of the fEtna Insurance Case and it is now given independent сonsideration. It presents the contention that the defendant is not liable for interest under the terms of the policy until sixty days after the filing of the proof of loss, or until after а denial of liability, and that, in the absence of evidence showing the filing of a proоf of loss, and since there wsfS neither pleading nor proof of denial of liability, it was error to render a judgment for interest beginning October 19, 1931. It will be observed that the building' was totally destroyed by fire August 19, 1931. There is an allegation in the plaintiff’s petition that notice of such lоss was given to the company August 20th. In a paragraph specifically alleging the facts of the case judgment was claimed in the amount of $1,500 “with interest thereon at the rate of 6% per annum from the expiration of sixty days from the giving of notice.” In the prayer judgment for the same amount was ashed “with interest thereon from October 19th, 1931.”
There is no allegation in the pleadings that the proof of loss was ever furnished by the plaintiffs. There is nothing in the statement of facts evidencing that it was or was not furnished. There is nothing in the testimоny to indicate that the defendant ever denied liability until the defendant filed its original answer March 1, 1932. The policy provided: “The loss shall not become payable until sixty days аfter the ascertainment, examination and satisfactory proof of loss herein required have been received by this company. ,⅜ * * ” The policy provided for рroof of loss within 91 days after the fire. Under these facts and circumstances the cоurt erred in awarding interest from October 19,1931, the same being 60 days after notice of loss. The provision as to proof of loss is effectual. Delaware Underwriters v. Brock,
Thе plaintiffs are entitled to interest from March 1, 1932. On that day the defendant filed its answer and fоr the first time denied liability in so far as that fact may be gathered from this record. As an authоrity for this holding we cite Southern Underwriters v. Jones (Tex. Civ. App.)
As reformed the judgment will be affirmed.