Southwestern Casualty Ins. Co. v. Heisterman

Court of Appeals of Texas

Southwestern Casualty Ins. Co. v. Heisterman

167 S.W. 1095, 1914 Tex. App. LEXIS 785

CourtCourt of Appeals of Texas

DecidedMay 21, 1914

DocketNo. 319.

StatusPublished

Cited by1 cases

This text of 167 S.W. 1095 (Southwestern Casualty Ins. Co. v. Heisterman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Southwestern Casualty Ins. Co. v. Heisterman, 167 S.W. 1095, 1914 Tex. App. LEXIS 785 (Tex. Ct. App. 1914).

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Opinion

I-IIGGINS, J.

Heisterman brought this suit to recover an indemnity alleged to have accrued upon an accident insurance policy issued by appellant. The policy insured against loss resulting from bodily injuries caused by accidental means. On July 4, 1912, appellee sustained a fracture of his right leg, and he sought recovery of the indemnity stipulated for time lost, also for- 12 per cent, additional as damages, together with an attorney’s fee and for an unearned portion of the premium paid.

[1 ] Error is first assigned to the admission of certain testimony of Heisterman. The bill of exception states that it was admitted upon I-Ieisterman’s redirect examination as a witness in his own behalf and in response to questions propounded to him by his counsel. The agreed statement of facts, however, discloses that the evidence was developed upon his cross-examination by defendant’s counsel. In case of a conflict between the bill and the agreed statement of facts, the latter controls. Railway Co. v. Jones, 118 S. W. 759; Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599; Railway Co. v. Montgomery, 139 S. W. 885; Cohen v. Rittimann, 139 S. W. 59.

[2] Since the statement of facts discloses the testimony to have been developed in response to questions propounded by appellant’s counsel, it cannot complain that it was improper.

We have examined the evidence and the jury’s findings upon the special issues sub-' mitted and have reached the conclusion that the findings are supported by the evidence and that they are not subject to the objections urged, and further that, upon the facts found, judgment was properly rendered in appellee’s favor. The three remaining assignments are therefore overruled; the court being of the opinion that, as we understand the same, they are without merit.

Affirmed.

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I-IIGGINS, J.

Heisterman brought this suit to recover an indemnity alleged to have accrued upon an accident insurance policy issued by appellant. The policy insured against loss resulting from bodily injuries caused by accidental means. On July 4, 1912, appellee sustained a fracture of his right leg, and he sought recovery of the indemnity stipulated for time lost, also for- 12 per cent, additional as damages, together with an attorney’s fee and for an unearned portion of the premium paid.

[1 ] Error is first assigned to the admission of certain testimony of Heisterman. The bill of exception states that it was admitted upon I-Ieisterman’s redirect examination as a witness in his own behalf and in response to questions propounded to him by his counsel. The agreed statement of facts, however, discloses that the evidence was developed upon his cross-examination by defendant’s counsel. In case of a conflict between the bill and the agreed statement of facts, the latter controls. Railway Co. v. Jones, 118 S. W. 759; Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599; Railway Co. v. Montgomery, 139 S. W. 885; Cohen v. Rittimann, 139 S. W. 59.

[2] Since the statement of facts discloses the testimony to have been developed in response to questions propounded by appellant’s counsel, it cannot complain that it was improper.

We have examined the evidence and the jury’s findings upon the special issues sub-' mitted and have reached the conclusion that the findings are supported by the evidence and that they are not subject to the objections urged, and further that, upon the facts found, judgment was properly rendered in appellee’s favor. The three remaining assignments are therefore overruled; the court being of the opinion that, as we understand the same, they are without merit.

Affirmed.

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167 S.W. 1095, 1914 Tex. App. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwestern-casualty-ins-co-v-heisterman-texapp-1914.

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