
    CAMDEN FIRE INS. ASS'N OF CAMDEN, N. J., v. PUETT.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Appeal and Error (§ 1043) — Review-Harmless Error.
    In an action upon an insurance policy, defendant was not prejudiced by the action of the court in refusing it a continuance to procure the testimony of a witness to prove a fact which the insured on the stand admitted.
    [Ed. Note. — For other cases, see Appeal and Error, ^ Cent. Dig. §§ 4115-4121; Dec. Dig. §
    2. Insurance (§ 281) — Proof op Loss — Misrepresentation — Statutory Provisions.
    Under Rev. St. 1911, art. 4949, providing that any provision in an insurance policy that the same shall be void or voidable if any misrepresentation be made in the proofs of loss shall be of no effect, and shall not constitute any defense to any suit thereon, unless the false statement or misrepresentation was fraudulently made, and was of a fact material to the liability of the company, the fact that the insured in her proof of loss misrepresented the value of a stove could not affect the liability of the company upon the policy, where the total value of the property destroyed, exclusive of the stove, was largely in excess of the amount of the policy.
    [Ed. Note. — For other cases, see Insurance,. Cent. Dig. §§ 597-600; Dec. Dig. § 281.]
    3. Evidence (§ 317) — Hearsay.
    A statement by plaintiff’s agent, not having been made in the presence of plaintiff, was-heai’say and not admissible.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    4. Appeal and Error (§ 1001) — Review— . Verdict.
    A verdict and judgment cannot be disturbed merely because there is evidence which might lead to a contrary result.
    [Ed. Note. — For other cases,_ see Appeal and. Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action ,by Mrs. J. C. Puett against the-Camden Fire Insurance Association of Camden, New Jersey. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    
      Ben h. Cox, of Abilene, for appellant. S. P. Hardwicke, of Abilene, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   CONNER, C. J.

Appellant presents tbe following statement of tbe nature and result of ibis suit, wbicb we tbink sufficient: “This suit was filed in the district court of Taylor county by Mrs. J. C. Puett, a widow, to recover tbe amount alleged to be due on a certain policy dated tbe 25th day of May, 1932, and issued to plaintiff by G. B. Trip-lett, a local agent of the defendant company at Abilene. The policy was in tbe sum of $2,500, $1,750 of wbicb was' on tbe house and $750 on tbe contents thereof, including furniture, stoves, carpets, window shades, etc., a full list of which was attached to and included in plaintiff’s petition. Plaintiff alleged that a fire occurred on tbe 15th day of June, 1912, wbicb totally destroyed said bouse and contents. She further alleged a full compliance with all tbe terms of said policy, including tbe payment of tbe premium due thereon, and she alleged tbe defendant’s failure and refusal to pay her tbe amount due on said policy according to its terms. Tbe defendant answered by general demurrer, general denial, and specially answered that tbe fire wbicb destroyed said property was brought about by virtue of a fraudulent conspiracy among plaintiff and her brother, J. B. Jordan,- and one J. 0. Nix, and defendant further pleaded that plaintiff bad violated certain warranties contained in said policy, fully set out in defendant’s answer. Among other special defenses, tbe defendant pleaded that plaintiff bad fraudulently misrepresented to defendant the character and amount and value of the property covered by tbe policy sued on; that she was guilty of false swearing in material matters touching said insurance; that she .concealed from plaintiff tbe fact that she was not occupying said bouse as her dwelling bouse at tbe time of the issuance of said policy. Defendant further pleaded that tbe statement in said policy, ‘occupied by tbe owner as a dwelling bouse,’ was a warranty in said policy, and that said warranty was breached by virtue of the fact that plaintiff was not so occupying said bouse at tbe time of tbe issuance of said policy. Plaintiff filed a first supplemental petition in wbicb she denied all of tbe special defenses set up by tbe defendant. Tbe case was tried before a jury, and tbe matters of fact were submitted to tbe jury by the court upon special issues prepared by tbe court in the form of questions, wbicb questions were answered by tbe jury in favor of plaintiff, and upon said answers as tbe verdict of said jury tbe court rendered judgment in favor of plaintiff for tbe full amount sued for by plaintiff, from wbicb judgment of tbe court defendant duly filed its motion for a new trial, which was by tbe court duly overruled, to wbicb action and judgment of the court tbe defendant excepted and gave notice of appeal, and now brings the case here for revision.”

Appellant first complains of the action of tbe court in overruling its first application for a continuance. Appellee objects to tbe manner of presenting the question, and, while tbe objections are probably well taken, we think the assignment must'be overruled on its merits and prefer to so treat it. It appears that, following the destruction of appellee’s premises and its contents, she presented to the appellant company her proofs of loss, including a list of tbe personal property destroyed, and that, among other things, appellee listed a range cooking stove at a value of $40, and appellant sought a continuance in order to procure tbe testimony of one Jobe, who it was alleged was absent because of a smallpox quarantine in the city of Abilene, and who would testify that be was familiar with tbe market value of said range and “that the market value thereof was $6 or $8, and that plaintiff paid witness tbe sum of $8 for said range.” It is very doubtful indeed whether tbe motion is sufficient in form under tbe statute in its statement of diligence; but, conceding its sufficiency, we tbink tbe court’s action cannot amount to reversible error. Tbe appellee while a witness on tbe stand, herself testified that she only gave “$5 for that stove.” She further testified: “I put it in on this list at $40 because be told me it was a good stove, and he told me it was a $40 stove, and they sell for $55 and $65 down here at Hughes’ and it was a secondhand stove.” Tbe jury in answer to a special issue submitted found that tbe fair value of all of the personal property situated in the house at the time of its destruction was $1,430, and further found in answer to another special issue that tbe plaintiff bad not fraudulently concealed or misrepresented to tbe defendant tbe value of tbe contents of tbe bouse, and we fail to see how tbe desired testimony could have materially affected appellant’s rights.

Our statutes (Revised Statutes 1911, art. 4949) provides that: “Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the same shall be void or voidable, if any misrepresentations or false statement be made in proofs of loss or of death, as the case may be, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract or policy, unless it be shown upon tbe trial of such suit that tbe false statement made in such proofs of loss or death was fraudulently made, and misrepresented a fact material to the question of the liability of the insurance company upon the contract of insurance sued on, and that tbe insurance company was thereby misled, and caused to waive or lose some valid defense to the policy

While, as stated, tbe jury found that the plaintiff had not fraudulently misrepresented tbe value of tbe personal property situated in tiie house, the fraud, in overvaluing the stove if conceded, could not affect the liability of the appellant upon its contract, of insurance. The issuance of the policy and the loss as declared upon was established, and plaintiff’s recovery upon the contents, by the very terms of the policy, was limited to $750; whereas, the total value of the personal property also covered by the policy, exclusive of the item relating to the stove, was largely in excess of the amount of the recovery she was entitled to on this account. We, accordingly, overrule appellant’s first assignment of error.

In the second assignment complaint is made of the action of the court in excluding a statement made by one J. O. Nix, who had been employed by G. B. Triplett, appellant’s agent who issued the policy in question. The issue of the alleged conspiracy was not raised by the evidence, and the statement offered was not in appellee’s presence and was, as to her, hearsay, and the court properly ruled as he did.

The remaining assignments all in one form or another question the sufficiency of the evidence to sustain the verdict and judgment; but, after a careful examination of the record, we feel no hesitation in saying that appellee’s testimony supported all the material issues of her petition and that the verdict and judgment cannot be disturbed merely because there is evidence in behalf of appellant of a contrary tendency.

It is ordered that the judgment be affirmed.  