Pelican Insurance v. Troy Co-operative Ass'n , 77 Tex. 225 ( 1890 )

STAYTON, CHIEF JUSTICE.

This action was brought byappellee on two policies of insurance covering risks on store house and merchandise. The petition alleged the destruction of the property and the policies were made exhibits.

Each policy contains the following provisions: "(1) This company shall not be liable for any loss or damage by fire caused by means of hurricane. (2) If the building shall, fall, except as the result of a fire, all insurance of this compaiiy on it or its contents shall immediately cease and determine."

The fire occurred during or immediately following a severe hurricane, which at least partially blew the house down, and there was evidence tending strongly to show that the fire had its origin in the breaking of a lamp by falling timbers.

The provisions of the policy above noticed are exceptions to the general liability assumed by appellant, and the petition should have averred that the fire did not occur from one of the excepted causes. This was necessary to show a cause of action, for the company did not insure against loss resulting from a fire caused by a hurricane, nor were its policies binding at all for a loss caused by fire occurring after the fall of the house unless the fall was caused by fire, for the parties had contracted that in that event the contract of insurance should not longer be operative.

The answer alleged that the house had been blown down by hurricane before the fire occurred, but did not expressly allege that the fire was so caused and that the company for this reason was not liable. The burden of proof was on the plaintiff to show not only that its property was destroyed by fire, but also to show that the loss occurred from a fire which the defendant had insured against.

It is doubtful if the petition, even with the policies made exhibits, stated a cause of action; but if it did it certainly could not be permitted to recover without proof necessary to support it. If the proof showed or tended to show with reasonable certainty that the house was blown down and after-wards destroyed by fire, it was the duty of the court, as was done, to submit to the jury whether the house fell from some other cause and was after-wards, with contents, destroyed by fire. That question was submitted and ■decided by the jury adversely to the defendant, and it is insisted that the ■court erred in refusing to grant a new trial on the ground that the evidence conclusively showed that the house was blown down and afterwards destroyed by fire. There was much evidence tending to show such a state of facts, but in view of the next matter to be noticed it is not now necesary to pass on this question. If the proof, as it certainly did, tended to show that the fire was caused by hurricane, then the court should have submitted that issue to the jury.

Appellant asked the following instruction: “The policy in this case provides that the defendant shall not be liable for any loss or damage by fire caused by a hurricane. If you believe from the evidence that the fire was caused by a hurricane, then you will find for the defendant. A hurricane is a storm or wind of extraordinary violence, sufficient to throw ■down buildings,” Which was refused, although no charge on the subject Aad been given.

Counsel for appellee justify the refusal of the court to give this charge ■on the ground that the pleadings of the defendant did not raise the issue.

If appellee’s petition stated a cause of action at all, it is because its averments amount to a statement that the property was destroyed by a fire which came within the risks assumed by appellant, and the general denial put that in issue, and the charge should have been given.

The court further erred in not instructing the jury that the burden of proof was upon the plaintiff to show by the preponderance of evidence that the fire was not caused by the fall of the building nor by hurricane. Such a charge was requested and refused when there was evidence which made such a charge proper.

The charge given informed the jury if they found “that the building as such was not destroyed by wind, but was destroyed by fire, then you will find for plaintiff.”

This was not the law of the case made by plaintiff’s pleadings, if they made a case at all.

The policies made parts of the petition showed what risk appellant assumed and what it did not, and there was much evidence tending to show that the loss occurred from causes which would not fix liability upon appellant.

For the reasons stated, the judgment will be reversed and the cause remanded.

Reversed and remanded.

Delivered May 6, 1890.