Scottish Union & National Ins. Co. v. Ornish

5 S.W.2d 162, 1928 Tex. App. LEXIS 309

Opinion

WILLSON, C. J.

Appellee’s suit against appellant was on a policy insuring him in the sum of $3,060, for a term of three years from July 2, 1924, against “all direct loss or damage by tornado, windstorm, or cyclone” to hid dwelling house. Appellee claimed the house was so damaged May 8, 1926. The appeal is from a judgment for $214 in his favor.

The principal contention on the appeal is based on a stipulation in the policy that appellant should not “be liable (quoting) for any loss or damage caused by hail, whether driven by wind or not.” It is insisted that appellee must have alleged and proved, and that he did neither, that the damages he sought to recover were not caused by hail. The contention is overruled. While appellee admitted in his pleadings that the house was damaged by hail, he alleged it was also damaged by wind, and that the' recovery he sought was on account alone of the damage by wind. The testimony of the witness Guess was that about one-half the damage to the house (estimated by him at $306) was caused by wind, and the other half by hail. The testimony of appellee’s wife was that practically all the damage to the house was caused by wind.

The other contentions presented in appellant’s brief are believed to be also without merit, and are overruled.

The judgment is affirmed.