American Nat. Ins. Co. v. Fulghum , 1915 Tex. App. LEXIS 713 ( 1915 )

On Rehearing.

The original opinion inadvertently failed to pass upon appellee’s cross-assignment complaining of the refusal of the court to allow interest on the indemnity provided for in the policy.

The plaintiff, in his petition, confined his claim to the indemnity specified in the policy, an attorney’s fee and 12 per cent, damages allowed by article .4746, Revised Statutes. He did not ask for interest, and the damage claimed was not laid in sufficient amount to cover same. In the state of his pleadings, recovery thereof was properly.denied. Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Railway Co. v. Starks, 109 S. W. 1003; Bank v. Cleland, 36 Tex. Civ. App. 478, 82 S. W. 337.

In view of a retrial it is proper to say that interest is recoverable upon the amount contracted to be paid in an insurance policy. Article 4977, Revised Statutes; Insurance Co. v. Ice Company, 64 Tex. 578; Insurance Co. v. Swift, 130 S. W. 670; Insurance Co. v. Bank, 107 S. W. 114; Insurance Co. v. Wilderspin, 118 S. W. 1131.

The policy here considered does not specify when an indemnity, which has accrued thereunder, shall be payable. In such case, the liability accrues when the accident occurs, and payment thereof should be made when proof is made to the company of its liability. Interest should be allowed from the date such proof is furnished. Insurance Co. v. Bank, supra.

The motion for rehearing is overruled.