Opinion
No. 1540.
December 9, 1915.
Appeal from Smith County Court; Jesse F. Odom, Judge.
Action by Hugh A. Warren against the National Live Stock Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.
The suit was on a policy issued by appellant insuring appellee for a period of one year from April 10, 1914, in the sum of $200, against loss of a stallion —
"by death caused by disease, fire, lightning, cyclone, accidental injuries, or by reason of a broken leg when found necessary by attending veterinarian to destroy the animal's life, with the exceptions set forth and printed on the back hereof, which are specially referred to and made a part of this policy."
The exceptions referred to as set forth on the back of the policy were there specified as follows:
"The perils indemnified against by this policy do not include the death of any animal if at any time during the life of this policy it shall have been castrated, or it shall have foaled, or it shall have been transported from one place to another; death from sickness or disease contracted, or injury occurring, prior to the delivery of this policy; death of any animal which is caused by any person, whether acting under or by virtue of any law or otherwise; loss by death after the premium has remained unpaid for 30 days from the date of policy; death from disease having its inception, or injury happening, during the period of such default."
The horse died November 30, 1914. The cause of his death was not shown otherwise than as it might be inferred from testimony of appellee, as follows:
"He (the horse) had not shown any signs of sickness before the night of his death. I heard him making a noise at the barn, and went out and opened the door. As soon as I opened the door, he fell out of the barn and was dead before I could put a bridle upon him. I did not have time to get a veterinary surgeon or any one to treat him. I do not know what caused his death. He had never been sick but once before, and that was for but a few moments."
The trial was to the court without a jury, and resulted in a judgment in favor of appellee for $200, interest and costs.
Simpson, Lasseter Gentry, of Tyler, for appellant. J. A. Bulloch and B. C. Johnson, both of Tyler, for appellee.
The trial court reduced to writing findings of fact made by him. Among them was not a specific finding as to the cause of the death of the horse, but there was one that he "died very suddenly on the night of November 22, 1914, without any fault upon the part of H. A. Warren, and without having shown signs of any previous illness." The contention, and the only one, made on this appeal, is that the finding specified "was not a sufficient finding of fact to authorize the court to render judgment on the policy of insurance herein sued on." If it should be conceded, and we think it must be, that the finding left undetermined the question as to whether the death of the horse was from a cause provided against In the policy or not, it would not follow that the judgment therefore should be reversed; for, in the absence of a finding determining that question, if there was testimony which would have authorized the trial court to find that his death was from such a cause, this court, in support of the judgment, would have to presume that he so found. Malone v. Fisher, 71 S.W. 996; Fitzhugh v. Land Co., 81 Tex. 306, 16 S.W. 1078; Spencer v. James, 10 Tex. Civ. App. 327, 31 S.W. 540, 43 S.W. 556; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S.W. 889. If the burden was on appellee to show not only the death of the horse, but also the cause of his death, we think the trial court, in the absence, as was the case, of testimony tending to show, or even suggesting, that his death was due to one of the excepted causes, had a right to infer from the testimony of appellee set out in the statement above that the horse died from disease or accidental injuries provided against in the policy. The circumstances as to his death shown by that testimony to our minds negatived an inference therefrom that he died from any of the excepted causes, but indicated, instead, that his death was due to sudden illness or accidental injuries covered by the policy.
The judgment is affirmed.