Lion Fire Insurance v. Starr

Citations

• 71 Tex. 733
• 12 S.W. 45
• 1888 Tex. LEXIS 1218

Syllabus

<p>1. Insurance Policy—Suppression op Evidence.—A violation by the assured of a clause in the fire insurance policy requiring upon a loss the production of account books, vouchers, etc., will not avoid the policy, but may be a subject of comment before the jury trying the issue as to the extent of the less.</p> <p>2. Same—Fraud by Assured.—A violation by the assured of a clause in the policy that “any fraud or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claims under this policy,” in prosecuting a claim, is a defense to an action for loss upon such policy; and false swearing, either by the party or by a witness in his behalf, wilfully resorted to by the plaintiff, would be a defense to such action.</p> <p>3. Same.—It was error in the court to charge that the false swearing, to be a defense, should be by the party and his witnesses both.</p> <p>4. False Swearing.—To be a defense, the fraud or false swearing upon part of the assured should be wilful, and not the result of inadvertence or mistake.</p> <p>5. Measure op Damages.—The measure of damages or extent of relief on the insurance policy is the extent of loss or the actual damage.</p> <p>6. Witness—Competency.—An employe of an insurance company, by reason of such employment, is a competent witness to prove that at the date of the contract of insurance the assured did not have on hand goods of the value estimated in the policy.</p> <p>7. Opinion of Witness.—A witness was asked: “Do you believe that plaintiff’s demand for recompense for total loss of one thousand dollars, on each of two insurance policies on the contents of his restaurant and fish stand, is based upon a just, honest and fair valuation of the property destroyed?” He answered: “I most positively do not,” and then gave his reasons for the opinion. On objection, the question and answer were properly excluded, as the opinion of the witness was not competent testimony.</p>