
    POTOMAC INS. CO. v. EASLEY.
    (No. 276.)
    Court of Civil Appeals of Texas. Eastland.
    March 18, 1927.
    Rehearing Denied April 15, 1927.
    1. Appeal and error <&wkey;724(l), 736 — Under statute relating to assignments of error, ruling complained of must be clearly pointed out and separate assignment made to each ruling (Rev. St. 1925, art. 1844).
    Under Rev. St. 1925, art. 1844, requiring appellant to file assignments of error distinctly specifying ground upon which he relies, rule complained of must be clearly pointed out in assignment and separate assignment made to each ruling considered objectionable.
    2. Appeal and error <&wkey;729, 736 — Assignment of error as to submission of issues held bad as too general and as complaining of two separate rulings (Rev. St. 1925, art. 1844).
    Under Rev. St. 1925, art. 1844, requiring appellant to file assignments of error distinctly specifying ground relied upon, assignment asserting, in substance, that court erred in submitting to jury questions attempting to fix measure of damages in any other manner than that stipulated and provided for in contract sued on, said contract not having been attacked nor sought to be avoided by plaintiff on grounds of either fraud, accident, or mistake, held bad as being too general and as complaining of two rulings, since two separate issues were submitted involving question of damages.
    3. Appeal and error <&wkey;733 — Assignment that court erred in giving judgment for plaintiff because judgment is excessive and without testimony to support it held not entitled to, consideration.
    Assignment of error to effect that court erred in giving judgment for plaintiff for sum of $1,920 because judgment is excessive and without testimony to support it held not. entitled to consideration.
    4. Appeal and error <&wkey;1040(10) — Overruling exceptions to plaintiff’s supplemental petition held not reversible error, where no issue was submitted on issue tendered by supplemental petition.
    Overruling special exceptions to plaintiff’s first supplemental petition, even if erroneous, was not ground for reversal where no issue was submitted to jury on issue tendered by supplemental petition, since, failure to submit issue, to which plaintiff did .not object, put- issue pleaded in such petition out of case.
    5. Insurance <&wkey;661 — Admitting evidence of insured’s damage to open and unopen cotton held not error, where insurance contract authorized recovery in some measure for damages to both open and unopen cotton.
    Admitting evidence to effect that insured’s damage on open cotton was $1,720, and amount of damage on unopen cotton was $845, held not erroneous on ground that it was immaterial, irrelevant, and speculative, where insurance contract authorized recovery in some measure for damages to both open and unopen cotton.
    6. Judgment <&wkey;!99(l)— Judgment cannot be entered notwithstanding verdict.
    Judgment cannot be entered for party notwithstanding the verdict.
    7. Judgment <&wkey;l99(l) — Court cannot, by entering judgment in favor of party, correct error committed against him in submitting wrong measure of damages.
    Court cannot, by entering his judgment in favor of one of parties, thereby correct an error committed against such party in submitting wrong measure of damages.
    8. Appeal and error <&wkey;>750(4, 6) — Neither sufficiency of evidence to support verdict nor correctness of court’s charge can be tested by assignments to court’s action in entering judgment on verdict.
    Neither sufficiency of evidence to support verdict nor correctness of court’s charge can be tested by assignments to action of court in entering judgment on verdict.
    9. Appeal and error <&wkey;672 — Where, from plaintiff’s own testimony, it conclusively appears that no recovery can be had, question of fundamental error is presented.
    Where it conclusively appears from plaintiff’s own testimony that no recovery can be had, question of fundamental error is presented.
    10. Insurance <&wkey;l46(3) — 'Where insurance contract is capable of two interpretations, construction most favorable to insured must be adopted.
    In construing policy of insurance, where contract is capable of two interpretations, that construction most favorable to insured must be adopted.
    11. Insurance <&wkey;!46(3) — Where language of policy is fairly susceptible of making insurer responsible for loss, court must so construe it.
    Where language of insurance policy is fairly susceptible of making insurer responsible for loss or injury, it is duty of court to so construe it.
    12. Insurance <&wkey;l46(3) — Insurance policy must be construed strongly against insurer and in favor of insured.
    An insurance policy must be construed strongly against insurer and in favor of insured.
    13. Insurance <&wkey;423 — Insurance policy held not to- exclude all damage to open cotton, but to mean that, in case of loss, loss should be reduced in proportion as matured cotton bears to unmatured.
    Insurance policy providing that insurer should not be liable for any loss or damage by hail, resulting from failure of assured to cut, pick, pull, gather, or harvest overripe crops, and that when cotton is insured liability of insurer shall be reduced in same proportion in which crop or any part thereof matures or is reduced by picking, pulling, cutting, or otherwise harvesting, or by being in any manner damaged or destroyed, held not to exclude all damage to open cotton, but to mean that, in case of loss, loss should be reduced in proportion as matured cotton bears to unmatured.
    
      Appeal from District Court, Taylor County; W. E. Ely, Judge.
    J. M. Easley against the Potomac Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Senter & Strong, of Dallas, for appellant.
    Scarborough & .Wilson, of Abilene, for ap-pellee.
   PANNILL, C. J.

The appeal is from a judgment entered in favor of the appellee, Easley, in a suit brought by him against the appellant, to recover, upon a policy of hail insurance covering 480 acres of cotton. The petition averred the execution and delivery of the policy, the obligation thereunder of appellant to respond to the appellee for all damage done to the, cotton crop of appellee by hail and destruction of crops by hail within the period covered by the policy, and sought damages for the full amount of the policy in the sum of $1,920. The appellant interposed certain demurrers to the supplemental petition of appellee, pleaded the general issue and certain provisions of the policy, the material parts of which will be noticed later.

The brief is not presented in accordance with the rules. It is a hybrid document, combining certain features of the new rules with other features of the rules which have been superseded by the rules now in force. It further pays this court the implied compliment of knowing the law by not citing even a single authority to sustain any proposition presented.

We have, nevertheless, examined the assignments to determine whether any of them can be considered. Article 1844, E.' S., requires the appellant to file assignments of error distinctly specifying the ground upon which he relies. This has been construed to mean that the ruling of the court complained of must be clearly pointed out in the assignment, and a separate assignment made to each ruling of the court considered objectionable. Considered in the light of these-rules, the first twelve of the assignments submitted should be considered. The other two are too general or are multifarious, and therefore not entitled to consideration.

The two assignments apparently coming under the condemnation of the rules referred to are the thirteenth and fourteenth. The thirteenth, in substance, asserts that the court erred in submitting to the jury questions attempting to fix the measure of damages in any other manner than that stipulated and provided for in the contract sued upon; said contract not having been attacked nor sought to be avoided by plaintiff on the grounds of either fraud, accident, or mistake. A reference to the charge of the court shows two separate issues submitted involving the question of damages. The giving of each issue constituted a separate ruling. In addition to this, the assignment is considered entirely too general, and for which reasons consideration of it is refused. Carter v. Guaranty State Bank (Tex. Civ. App.) 262 S. W. 108; Lundell v. Allen (Tex. Civ. App.) 244 S. W. 1098; Cammack v Rogers, 96 Tex. 467, 73 S. W. 795.

The fourteenth is to the effect that the court erred in giving judgment for the plaintiff for the sum of $1,920, because the judgment is excessive and without testimony to support it. The authorities, cited above clearly show that this assignment should not be considered.

The remaining assignments will be considered and discussed briefly.

The first seven relate to the action of the court in overruling special exceptions to the plaintiff’s first supplemental petition. The supplemental petition sought to plead an estoppel against appellant to assert that it was not liable on the policy. No issue was submitted to the jury by the court on the issue thus tendered by the supplemental petition, and the court’s action, even if erroneous, would not be ground for reversal, because under the decisions the failure to submit the issue, and to which failure the appellee did not object, put the issue pleaded in the supplemental petition-out of the case. G. H. & S. A. Ry. Co. v. Price (Tex. Com. App.) 240 S. W. 524. Therefore, the assignments now under discussion -are overruled.

The next two assignments complain of evidence, admitted over objection, to the effect that the amount of appellee’s damage on open cotton was $1,720, and the amount of damage on unopen cotton was $845. These assignments are overruled because it is believed that the testimony was not subject to the objection made that it was immaterial, irrelevant, and speculative. As will be stated somewhat more in detail hereinafter, the conclusion has been reached that the contract authorized a recovery in some measure for damages to both open and unopen cotton, and the evidence objected to was material to that issue.

The next three assignments, in order, complain of the action of the court in giving judgment for the plaintiff, for want of evidence to show the amount of the loss for which the defendant was required to respond under the provisions of its policy, in overruling defendant’s motion for judgment in favor of defendant upon the answers of the jury, and for giving judgment for the plaintiff because that evidence was wanting to show the proportion which the loss upon the unmatured cotton bore to the value per acre of the sound condition of the unmatured cotton. Consideration of these assignments produces the conviction that each of them raises but the one question, and that was the failure of the court to render judgment for the defendant “non obstante veredicto.” The submission was upon special issues, first, as to tbe damage sustained to tbe unopen cotton, wbicb damage tbe jury found to be $845, and, second, tbe damage to tbe open cotton, wbicb was ascertained by tbe jury to be $1,-720. Tbe assignments last referred to suggest but two legal propositions. The first is that no facts were in evidence wbicb would authorize tbe court to submit tbe measure of damage as it did, and tbe second is that tbe court should have entered judgment for the defendant because tbe answers of tbe jury were witbou.t testimony to support them. It is now settled by tbe recent decisions of tbe Supreme Court that judgment cannot be entered for a party notwithstanding tbe verdict. Massie v. Hutcheson (Tex. Com. App.) 270 S. W. 544.

In tbe case just cited it was held that tbe trial court could not render judgment for tbe defendant in the face of tbe verdict for plaintiff, even though such verdict was wholly without evidence to support it, and that the judgment of tbe Court of Civil Appeals affirming such a judgment was likewise erroneous and subject to reversal. It was there said that, when a verdict is brought into court, tbe court has two courses open to him; one is to receive tbe verdict and enter judgment upon it, and tbe other is to set it aside. Clearly, then, an assignment wbicb complains of tbe action of tbe court in not giving judgment for a party, when there is a verdict against him, must be overruled. This decision refutes the further proposition suggested by tbe assignments under review that tbe court could, by entering bis judgment in favor of one of tbe parties, thereby correct an error committed against such party in submitting tbe wrong measure of damages. Neither tbe sufficiency of tbe evidence to support a verdict nor tbe correctness of tbe court’s ebarge can be tested by assignments to tbe action of tbe court in entering judgment on a verdict.

Having illustrated tbe view entertained as to tbe assignments of error submitted, we come now to tbe principal proposition suggested by tbe brief, and that is that no recovery could be permitted for open cotton. Tbe conclusion has been reached that, although this matter was not properly assigned, it presents a question of fundamental error requiring us to examine the policy and see whether, under its terms, there is any basis for tbe measure of damages submitted by tbe court in any respect as to open cotton. In the very recent case of Olguin v. Apodaca (Tex. Com. App.) 228 S. W. 166, it is, in effect, decided that, where from the plaintiff’s own testimony it conclusively appears that no recovery can be bad, a question of fundamental error is presented. Hence we have decided tba't it is our duty to read tbe policy and see whether there was any justification for submitting any question of damages as to open cotton.. If there was, the brief has not properly presented any question for review concerning-tbe manner and form of tbe submission, or-of the sufficiency of tbe testimony, but if it should be determined that no recovery could be bad for open cotton, then. that part of tbe verdict allowing a recovery therefor would constitute an error, apparent upon the-face of the record.

Tbe policy was put in evidence by the-appellee. Tbe provisions relating to open, cotton are thought to be tbe following:

“This company shall not be liable for any loss or damage by hail to the crops hereby described, unless the loss or damage equals 5 percent. or more of the total hail insurance covering tbe particular crop so damaged; * * * nor for any loss or damage by bail resulting from the neglect or failure of the assured to cut, pick, pull, gather, or harvest overripe crops.
“When cotton is insured, tbe liability of tbe company shall be reduced in the same proportion in which said crop, or any part thereof, matures, or is reduced by picking, pulling, cutting, or other harvesting, or by being in any manner damaged or destroyed. When a boll opens, it shall be considered mature.”

In construing tbe policy of insurance, tbe law is well established that, when the-contract is capable of two interpretations, that construction most favorable to tbe insured must be adopted. Hartford Fire Ins. Co. v. Dorroh, 63 Tex. Civ. App. 560, 133 S. W. 465; Dorroh-Kelly Mercantile Co. v. Orient Ins. Co., 104 Tex. 199, 135 S. W. 1165; Etna ÆLife Ins. Co. v. El Paso Electric Ry. Co. (Tex. Civ. App.) 184 S. W. 628; Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35.

Where tbe language of a policy is fairly susceptible of making the insurer re* sponsible for tbe loss or injury, it is the duty of the court to so construe it. Western Indemnity Co. v. MacKechnie (Tex. Civ. App.) 185 S. W. 615.

Tbe further rule obtains that an in* surance policy must be construed strongly against tbe company and in favor of the insured. Hardin v. Continental Casualty Co. (Tex. Civ. App.) 195 S. W. 653.

Tbe quoted provisions of tbe policy do not certainly exclude all damage to open cotton, but are subject to tbe construction that, in case of loss, tbe loss must be reduced in proportion as tbe matured cotton bears to tbe unmatured. Under tbe rules stated, that construction, being most favorable to the insured and being fairly susceptible of making tbe insurer responsible for tbe loss or injury, must be applied. It is therefore concluded thp.t some liability attaches to tbe appellant for damages to open cotton.

Having failed to present to this court, in a manner required to invoke its jurisdiction, the questions as to whether tbe measure of damages was properly proved and submitted, the appellant has lost the right to have these matters considered.

For the reasons stated, the judgment of the trial court is affirmed. 
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