
    AMERICAN EQUITABLE ASSUR. CO. OF NEW YORK v. MARTIN.
    No. 3893.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1930.
    Rehearing Denied Dec. 18, 1930.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    Crumpton & Crumpton, of Texarkana, for appellee.
   LEVY, J.

The suit was by the appellee, Mrs. Martin, on a fire insurance policy insuring her household goods against loss or damage by fire in a sum not to exceed $2,000. As claimed by the insured, on August 7, 1929, a fire destroyed most, and injured some of the household goods. The case was submitted to the jury upon the two following issues:

“Question No. 1: What do you find from a preponderance of the evidence the actual cash value, if any, of the property to be that was totally destroyed, if any was, by the fire at the time and place of its destruction? Answer of the Jury: $1,750.00.
. “Question No. 2: What do you find from a preponderance of the evidence to be the amount of damage, if any, to the property not wholly destroyed by fire? Answer of the Jury: $250.00.”

Judgment was entered for the plaintiff in accordance with the verdict of the jury.

The defendant filed a plea in abatement, which was tried before the court and before trial on the merits. The plea set up as grounds for abatement in substance that: (1) The insured had failed to furnish to the company proofs of loss in accordance with the pleaded provisions of the policy; (2) the plaintiff had failed to submit to an appraisement or arbitration in accordance with the pleaded provisions of the policy.

After hearing the evidence the court overruled the plea. At the request of the defendant the court filed findings of fact upon the plea of abatement. The findings of fact so made show that: (1) The insured made out and on September 12, 1929 (thirty-six days after the fire), mailed directly to the home office of the insurance company proofs of loss which “was in fact in strict compliance with the terms of the policy with reference to notice and proof of loss”; that the objections made that the proofs of loss were defective were not substantial objections; (2) the insured agreed to an arbitration and to the appraiser, but the conduct on the part of the company’s agent operated to prevent an appraisal to be had or an award made; that the company’s agent and the insured agreed upon an arbitration and upon the appraiser. and thereafter “in lieu of appraisement the agent for said defendant offered $600.00 in settlement of the loss,” which amount was promptly refused by the plaintiff, and thereupon “the agent for the defendant withdrew his offer to pay and denied all liability of the company for any loss,” and by his conduct the agent abandoned the demand for arbitration; there was a waiver of the arbitration by the conduct of the agent of the company in delaying and failing to proceed with the arbitration after being agreed upon, and in delaying to demand an appraisal in a reasonable time.

The appellants challenge the several findings of fact made by the court. The statement of1 facts upon the plea in abatement, and upon tbe trial of tbe case upon merits, are distinctly separate documents, and tbe facts purported to have been deduced upon tbe trial of plea in abatement does not have tbe signed approval of tbe trial judge. Tbe approval of tbe trial judge is required. Galveston, H. & S. A. Ry. Co. v. Keen (Tex. Civ. App.) 73 S. W. 1074, 1075; Texas Electric Ry. v. Gonzales (Tex. Civ. App.) 211 S. W. 347; also Magee v. Magee (Tex. Civ. App.) 272 S. W. 252; Argo v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 265 S. W. 1065, Amonette v. Taylor (Tex. Civ. App.) 244 S. W. 238. Hence, in absence of tbe statement of facts, it must be presumed that tbe evidence supported tbe court’s findings of fact.

By proper assignments of errors tbe appellant bases error upon tbe following bill of exceptions:

“In tbe trial of tbe case on tbe merits and upon tbe plea in bar, tbe defendant offered in evidence tbe testimony theretofore offered in evidence upon tbe bearing of tbe plea in abatement; said testimony was offered upon the two defenses set up to-wit: First, the failure of plaintiff to submit bis proof of loss in accordance with tbe provisions of tbe policy; Second, tbe failure of tbe plaintiff to submit to an appraisal in accordance with tbe provisions of tbe policy; thereupon counsel for plaintiff objected to said testimony on the ground that the court bad passed bn such defenses in bis ruling theretofore upon the defendant’s plea in abatement; tbe court thereupon excluded and refused to permit tbe defendant to offer in evidence any of said testimony introduced in tbe bearing of the plea in abatement because, in the opinion of the court, matters involved in tbe testimony bad been adjudicated by tbe ruling of the court on tbe plea in abatement.”

Tbe bill of exceptions has appended thereto tbe following statement by tbe trial judge:

“Defendant bad plead by way of abatement the matters of no proper proof of loss, and of plaintiff’s failure to submit to an appraisal, and tbe court had theretofore overruled tbe plea in abatement. Consequently I considered that those issues were not longer in tbe case.”

Tbe answer filed by tbe appellant reads:

“Without waiving its plea in abatement, but still insisting on same, and after tbe overruling thereof comes tbe defendant and demurs generally to plaintiff’s petition and of this prays judgment.
2. “Defendant denies all and singular tbe allegations contained in said petition and of this puts itself upon tbe country.
3. “Defendant adopts tbe allegations contained in its plea in abatement as a plea in bar to plaintiff’s suit.
4.“Defendant pleads that it has not waived tbe right to a proper proof of loss and to an appraisal as demanded by it by any conduct on its part and in reply to plaintiff’s plea of waiver says that at tbe time the investigation of the loss in this case was begun a written agreement was executed by plaintiff agreeing that none of tbe provisions in said policy should be waived by tbe conduct of defendant in tbe investigation.”

In tbe light of tbe above statements, it is believed that error may not be said to exist in the ruling of tbe court. Tbe following quotation, serving for illustration, from Providence Washington Ins. Co. v. Wolf, 168 Ind. 690, 80 N. E. 26, 32, 120 Am. St. Rep. at page 395, quite upholds tbe above stated ruling of tbe trial court, viz.:

“Appellant, by pleading tbe provision of the policy for tbe arbitration of tbe amount of tbe loss, and that it had not waived tbe same, in abatement of tbe action and procuring a trial thereon, assumed» tbe position that tbe same was in abatement of the action, and induced the. court to so bold, and could not thereafter change its position and successfully claim that tbe matter so pleaded in abatement was a matter in bar of tbe action, and thus secure another trial of tbe same question in the same action. State v. Board, 166 Ind. 162, 76 N. E. 986, 1001, 1002, and cases cited; Bigelow on Estoppel (5th Ed.) 673, 717-723.”

The testimony claimed to have been proffered is not made a part of the record with tbe signed approval of tbe trial judge, as before shown, so that this court may consider it.

In tbe trial on the merits, the appellant excepted to tbe evidence of tbe insured given by her as to tbe value of her household goods upon tbe grounds “that she was not shown to be qualified.” Tbe qualification made to tbe bill of exceptions states that tbe plaintiff bad testified that during her twenty-two years’ experience as a housewife she bad dealings in furniture and in its value, and “was acquainted with tbe reasonable value of household furniture of tbe character and kinds of hers at tbe time of tbe fire.” Tbe trial court did not err in overruling tbe objection made, as tbe weight to be given to the evidence of the witness as reflected by her answers, and not its admissibility, was involved.

The appellant asked for a peremptory instruction, which was refused, and did not request special issues upon any given matter. We think there was no error in overruling tbe request for peremptory instructions. We have carefully considered all tbe assignments of error, and think they should be overruled.

Tbe judgment is affirmed.  