Niagara Fire Ins. Co. v. Lollar , 1913 Tex. App. LEXIS 47 ( 1913 )

WILLSON, C. J.

(after stating the facts as above). [1] One of the grounds of the motion for a new trial was the absence of appellant’s attorneys from the court at the time the case was tried. It was alleged in the motion that said attorneys resided in Dallas, 85 miles from Sulphur Springs, where the trial was had. The only reason assigned for the absence of the attorneys from the court was that they did not believe the case would be reached for trial as soon as it was reached. It was alleged in the motion that said attorneys on August 15th wrote appel-lee’s attorney advising him they represented appellant and would “forward an answer to the clerk, together with jury fee,” and requesting him to advise them “when the case is set down for trial,” and that appellee’s attorney on August 16th replied as follows: “Will ask for a jury for you, but can’t set the case. We have no assignment of cases in this court, and it is hard to tell when one can get a chance of trial in a jury case. There are several eases ahead of the Dollar Case. They may be tried or may be continued or settled, can’t tell, and the court won’t hold a jury for a case the trial of which has been postponed, and we will have to watch the cases and try when we can.” It was further alleged in the motion that on August 16th appellant’s attorneys wrote the clerk, sending its answer to the petition and the jury fee, and requesting him to see that the case was placed on the jury docket and to advise them “when the court will set its jury docket,” and that the clerk replied that he would see that the case was placed on the jury docket and that the court would “set its jury docket on Wednesday, August 28th.” Appellant then alleged that from the replies received to their said letters its attorneys “were led to believe and did believe that on August 28th the court would set this cause along with the cases for some certain time, and that they would be notified of the setting thereof. That in view of the fact that this cause is an appearance case, and that there were' several cases ahead of it, they were led to believe, and did believe, that same would not be reached during the first week of court, but probably during the second week of said term.” Appellant further alleged in said motion that its attorneys had found it to be “a uniform custom among members of the bar of the state of Texas to notify nonresident counsel of the setting of cases; that the letter from Mr. D. Thornton, counsel for plaintiff, was of the character to lead, and which did lead, defendant’s counsel to believe that plaintiff’s counsel would conform to such custom and notify the defendant’s counsel of the setting of this case, and they relied upon him to do. so.” Appellant then alleged that it had a meritorious defense to appellee’s suit, setting out same at length, offered to try the cause at any time during the term the court might select, and further offered to abide by any conditions the court might impose as to costs if the new trial should be granted. The motion, in tlie respects stated, was sworn to by one of appellant’s attorneys. It was controverted, in some of those respects, by a sworn answer thereto filed by appellee. As we are of the opinion it should not be said, even on appellant’s own showing as to the facts, that the court abused the discretion he possessed when he overruled the motion, the allegations in said answer need not be set out. As supporting its contention that its motion should have been granted, appellant cites several cases, relying on Scottish Union & National Ins. Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109, as being most nearly in point. But in that case it appeared that the appellant’s attorneys were justified, by the circumstances shown, in concluding that it would not be reached for trial so soon as it was reached, and therefore that they were not without excuse for their failure to be present at the trial. In this case we think the trial court, from the allegations in the motion, and without reference to matters set up by appellee in its answer controverting same, was entirely justified in concluding that appellant’s attorneys did not have a right to believe the case would not be reached for trial so soon as it was reached. They were advised by the clerk in his letter of August 17th that the court would set the 'jury docket on August 28th, and informed by appellee’s attorney in the letter he wrote to them August 16th that the case could not be set down for trial on a- particular day of the term, but that it would be necessary to watch the docket and try it when it was reached.

[2] It is insisted that the petition did not state a cause of action, because it did not contain an allegation that appellee had furnished proof of the loss sustained by the fire. It was claimed that, by the terms of the policy issued to appellee, furnishing such proof was a condition precedent to his right to maintain a suit against appellant. ■ If it appeared that the suit was on the written policy, there would be merit in the contention. Insurance Co. v. Bowlin, 70 S. W. 797. But, by reference to the allegations in the original and supplemental petitions set out in the statement, it will be seen that the suit was not on the policy, but on a parol contract free of such a condition. Therefore the contention is overruled. Cohen v. Insurance Co., 67 Tex. 325, 3 S. W. 297, 60 Am. Rep. 24; Dull v. Fire Association, 129 Mo. 460, 30 S. W. 1034; 1 Cooley’s Briefs on Insurance, 405.

It is next insisted that by the terms of the policy it covered the risk only while ap-pellee was the sole and unconditional owner thereof, and that, “there being no averment in plaintiff’s petition that at the time of the fire he had an insurable interest in the property alleged to have been destroyed, the plaintiff was not entitled to recover, even if an insurable interest in him was proven.” And finally it is insisted that by the terms of the policy appellant “agreed to pay plaintiff the actual cash value of the property damaged or destroyed, not to exceed the amount named in the policy; and, there being no averment in plaintiff’s petition as to the value of the property alleged to have been destroyed, the plaintiff, as a matter of law, was not entitled to recover, even though the value was proven.” It is a sufficient answer to these contentions, we think, to repeat that the suit was on a parol contract to insure, and not on the written policy.

The judgment is affirmed.