American Ins. Co. of Newark v. Delaney , 1935 Tex. App. LEXIS 278 ( 1935 )

COMBS, Justice.

This suit is upon an insurance policy issued by appellant to appellee for $3,000, covering certain personal property. Verdict was instructed for appellee.

The policy sued on contained a provision that the insurer would not be liable for fire loss occasioned by riot, civil war, insurrection, civil commotion, etc., or by neglect- of the insured to use reasonable means to save the property. Appellee’s evidence failed to show that his cause of action does not fall within the exceptions. The rule is now well settled that the burden of proof was upon him to make such showing as a prerequisite to his right to recover. Travelers’ Ins. Co. v. Harris (Tex. Com. App.) 212 S. W. 933; American Ins. Co. v. Maddox (Tex. Civ. App.) 60 S.W.(2d) 1074; Chicago Fire & Marine Ins. Co. v. Foley (Tex. Civ. App.) 58 S.W.(2d) 174; American Indemnity Co. v. Martin (Tex. Civ. App.) 54 S.W.(2d) 542.

For the error discussed, the cause is reversed, and remanded for a new trial.