243 S.W. 590 | Tex. App. | 1922
The principal question in the appeal is that of whether or not the policy of insurance was avoided. There was sufficient evidence, and of a substantial kind, to carry the issue to the jury concerning the alleged misrepresentations of appellee. In view of the jury findings, the policy was not avoided by reason of misrepresentations on the part of the appellee. While the appellee, under the evidence in this case, would, as a matter of law, be held to have known of the terms of the stipulation appearing in the rider (Morrison v. Ins. Co.,
"I was living about 150 yards, right close, from the gin. Nobody was living in any house closer to the gin than the house in which I was living at the time of the fire. The gin burned at night. When I discovered the fire, the gin building was just about burned down. I looked at the clock when I saw the blaze, and it seems to me now that it was 12 o'clock. Seeing the blaze was what first attracted my attention to the fire. There was not anybody out there at the time."
That the breach of the condition or provision relied on contributed to bring about the loss of the property is a defense to be pleaded by the insurer, and the burden of proof of the defense was upon appellant. The burden of proof is not sufficiently discharged or met in the evidence. Ins. Co. v. Harris,
We have considered each assignment of error, and conclude that each of them should be overruled upon the ground that no reversible error exists.
The judgment is affirmed.