Opinion
No. 3956.
February 13, 1931. Rehearing Denied February 26, 1931.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by Mrs. Mary L. Orr against the Franklin Fire Insurance Company of Philadelphia. Judgment for plaintiff, and defendant appeals.
Affirmed.
The policy of fire insurance upon which this action was brought insured the appellee's household furniture and other personal property in her one-story frame building at 2004 Maple street, Texarkana, Tex., in "an amount not exceeding $1,000.00." The policy bore date of September 10, 1928, and was for the period of one year, expiring. September 10, 1929.
The insurance company pleaded in abatement of the suit that the insured made no sufficient proof of loss as required by the policy. The insured pleaded the circumstances to the point that, as soon as she knew of the fire and loss, she made, and without delay, full and due proof of loss.
The policy provided, viz.: "If fire occur the insured shall protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, state the quantity and cost of each article and the amount claimed thereon; and within ninety-one days after the fire, unless such time is extended in writing by this Company, shall render a statement to this Company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon, all encumbrances thereon, all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies, any changes in the title, use, occupation, location, possession or exposures of said property since the issuance of this policy, by whom and for what purposes any building herein described and the several parts thereof were occupied at the time of the fire," etc.
The policy further provided: "The loss shall not become payable until sixty days after the ascertainment, estimate, and satisfactory proof of the loss herein required shall have been received by this Company, including an award by appraisers when appraisal has been required."
As is made to appear in the fire chiefs evidence, the fire occurred "on the night of September 19, 1928," while elsewhere, as it is made to appear from the evidence of other witnesses, the fire "occurred on August 19, 1929." It appears probable that the date "September 19, 1928," was a clerical error and therefore August 19, 1929, should be taken as the real date of the fire. On the date of August 19, 1929, as appears without controversy, the insured was in Compton, Cal. She had been visiting there since "the early part of the year 1929," and was intending to return to her home at Texarkana some time in the fall of the year, probably, as indicated, in October, 1929. Her kinsmen in Texarkana did not know her address in California, and because thereof they did not write the insured about the fire until some time in October, 1929, when her address was found out. Insured had no knowledge whatever of the fire until she got such information during the latter part of October, 1929. She then made an affidavit before a notary public in California, dated December 3, 1929, and reading:
"State of California, Willowbrook, County of Los Angeles
"Mary L. Orr, being first duly sworn, deposes and says: That the following described household goods are or was my individual personal property and the same was destroyed by fire on or about the 19th day of August, 1929, and same was insured in the Franklin Fire Insurance Company of Philadelphia; 1 player piano, $450.00, 1 bedroom suite, $125.00, 1 dining-room suite, $150.00, one gas range, $100.00. * * * [Description and value continues.] I left this household goods with Guy Shaw and Herbert Huddleston to stay there and look after my property until my return from California."
The proof of loss was mailed to appellant to its general office at Philadelphia, and was received by it on December 16, 1929. The suit was thereafter filed on March 1, 1930. The insured property was all destroyed by fire at a time when the policy was in full force.
The trial court heard the plea in abatement and overruled it. The only issue submitted to the jury was as to the value of the goods destroyed by the fire, and, in keeping with their finding, a judgment was entered in favor of the insured.
Thompson, Knight, Baker Harris, of Dallas, for appellant.
Joe Hughes and H. H. Taylor, both of Texarkana, for appellee.
The first and second assignments of error are considered together as raising the same point. By the first assignment of error, the complaint is made of the refusal of the court to give the appellant's requested peremptory instruction to the jury to return a verdict in its favor. By the second assignment of error, the complaint is made of submitting to the jury for finding of the reasonable cash value of the property destroyed by fire at the time and place of the fire. As appears in the statement of facts, the insured testified by deposition, besides other matters, as follows: "I had my household goods insured in the Franklin Fire Insurance Company of Philadelphia for $1,000.00. The list and the description of the furniture stated in the proof of loss and the value thereof is true and correct to the best of my knowledge and belief. Proof of loss herewith attached and marked `Exhibit A.'"
The proof of loss referred to by the insured showed a full list of property with description and value, for instance: "One player piano, $450.00, one bedroom suite, $125.00, one dining-room suite, $150.00, one gas range, $100.00." The list contained a further description than above set out of all the property insured with the quantity and cash value of each item. Some confusion seemingly arises as to the "proof of loss" referred to by the insured because the court first sustained objection to the written proof of loss and did not permit it to be considered as "determining the value of the property destroyed by fire." The court at the time stated that "proof of the value will have to be shown in a different way," evidently meaning that, in the absence of further evidence, the instrument itself could not be regarded as sufficient proof of value. After this ruling, though, the insured was further asked to state if the "proof of loss and the value thereof was true and correct." The objections to the question were all overruled by the court, and the insured was permitted to answer that the loss and value in the proof of loss was correct. The latter ruling was intended to have the effect to authorize the jury to consider the written proof of loss in connection with the oral evidence in determining the value of the property at time of the fire. In this view, the question for decision would be whether or not there is any competent evidence of loss and value for the jury to consider. As appears, the insured, in her evidence as given above, was fairly endeavoring to state the kind of property, the quantity, and the cash value of the same, as insured and when destroyed by fire, with the aid and use of the written memoranda. The written instrument was produced, and she knew that the facts were correctly stated therein and when the facts were fresh in her memory. If at the time when an entry of aggregate quantities and values was made the witness knew it was correct, it is difficult to say why it is not at least as reliable as is the memory of the witness. Such is the ordinary memory that few witnesses would be able to testify as to quantities, sums, and values if they were not permitted to refer to proper writings or documents which they knew to be correct when made. It is believed there was competent prima facie evidence at least of loss and value, and the assignments of error must be overruled. Republic F. Insurance Co. v. Weide, 14 Wall. 375; 20 L.Ed. 894.
By the third assignment of error it is contended that the court erred in overruling the plea in abatement. It is pointed out that the proof of loss was not in compliance with the requirements of the policy. Although the proof of loss was made 118 days after the fire occurred, and not within 91 days thereafter, as provided in the policy, yet the trial court's conclusion must be upheld, as supported by evidence, that the circumstances were such as to excuse the delay. The insured was absent in another state and was entirely ignorant of the fire and loss. Sun Mut. Insurance Co. v. Mattingly, 77 Tex. 162, 13 S.W. 1016; 33 C.J. § 663, p. 15. But the objection principally urged by appellant was that the proof of loss as made was inadequate as such as having too few of the features required by the policy. This contention must depend upon whether or not, in view of all the special facts, there was a substantial compliance with the information called for by the policy. The insured was asked by the interrogatories of the policy to state her knowledge and belief as to the origin and time of the fire, and she answered giving the "time" of the fire as being "on or about August 19, 1929." According to the undisputed evidence, the insured was in California and had no knowledge or information as to the "origin" of the fire. She was asked to state her interest and that of "all others" in the property, and she answered that all the property was "my individual property." She was asked to state the cash value of each item with the amount of the loss, and in answer she set out a full list of the property, quantity and value. She further answered that the property listed "was destroyed by fire." She answered that the company carrying her insurance was the "Franklin Fire Insurance of Philadelphia." She was asked to state, and she answered, "by whom and for what purposes" the several parts of the building were occupied. The oral evidence offered showed without dispute that the facts stated in the proof of loss were true and were all the facts existing. It was not contemplated by the policy that the insured should go further and negative conditions sought to be inquired into when such conditions are shown without dispute did not in fact exist. It is believed that the proof of loss was a substantial compliance with the requirements of the policy and was not inadequate as such.
By the fourth assignment of error, complaint is made of admitting a copy of a letter in evidence which the insured had written to the appellant company. The letter related to the proof of loss. The original, rather than the copy, may be regarded as better evidence, but the contents of the letter were immaterial, and reversible error may not be predicated upon the court's ruling.
The judgment is affirmed.