cient to submit the question whether the hazard had been increased, an instruction that, if the risk had been increased by using the house as a laundry, but not within the insured's knowledge or control, the policy would not be rendered void, is proper.1206 An instruction that if there was an increase of hazard by the conducting of a gambling establishment on the premises, it would avoid the policy, unless waived, was sufficient where the general charge had fully instructed the jury as to waiver.1 It is error to charge that an insurer, through information given its secretary by an agent that a certain factory was using a cotton gin in its building, thereby, according to the insurer's contention, increasing the risk, had notice, the insurer claiming the policy avoided by reason of such fact.1188 (For evidence not justifying a charge that if the jury believed in effect that cotton gins are embraced in the term "cotton

1199. In a suit on fire policies, an instruction that insured could not recover for articles stolen or not in the house at the time of the fire was properly refused, where an instruction given required the jury to find that all the property described in the proof of loss was in the house at the time of the fire and was destroyed.-Milwaukee Mechanics' Ins. Co. v. Frosch, 130 S. W. 600.

1200. In an action on a policy of fire insurance which provided that the company should not be liable beyond "the actual cash value" of the property destroyed, an instruction that the jury might find for the plaintiff the "fair market value" of the property destroyed is not error; the expression "fair market value" being equivalent to "actual cash value."-Manchester Fire Ins. Co. v. Simmons, 35 S. W. 722.

1201. Where the policy calls for payment 60 days after proofs of loss, and the jury has been charged not to find for the plaintiff unless there had been a waiver of proof by the company, a subsequent instruction that, if the jury find for the plaintiff, they should calculate interest from 60 days after loss by fire, is not erroneous, as assuming the existence of the waiver, since the jury could not award interest under the instructions unless there had been such waiver.-East Texas Fire Ins. Co. v. Brown, 18 S. W. 713.

1202. But such instruction is erroneous in failing to state that a cause of action would not accrue under the terms of the policy until after 60 days from the date of the waiver, and that interest would not begin until the accrual of a cause of action.-East Texas Fire Ins. Co. v. Brown, 18 S. W. 713. 1203. Where a policy provides that a sale of the insured property shall avoid the policy, and the issue is whether a forfeiture by a sale has been waived by the adjuster, and in

1205 1204

struction that such forfeiture prevents a recovery by the insured, unless the agent who issued the policy knew of the sale, and agreed to and signed the transfer, is misleading, notwithstanding that, in the general charge, the court fully instructs on the question of waiver, no reference thereto being made in the special charge.— Moriarty v. United States Fire Ins. Co., 49 S. W. 132, 19 Tex. Civ. App. 669.

1204. An instruction, "If you find from the evidence that the conduct of a gambling establishment in said insured premises was an increase of hazard, you will find for defendant, unless from the charge you find such forfeiture was waived," does not assume that the gambling establishment increased the hazard.-Moriarty v. United States Fire Ins. Co., 49 S. W. 132, 19 Tex. Civ. App. 669.

1205.

Where in the general charge the court had fully instructed the jury as to waiver, an instruction that if there was an increase of hazard by the conducting of a gambling establishment on the premises, it would avoid the policy unless waived, was sufficient, in the absence of a request, without a statement of what acts of defendant would constitute a waiver. -Moriarty v. United States Fire Ins. Co., 49 S. W. 132, 19 Tex. Civ. App. 669.

1206. In a suit on a fire policy providing that it shall be void if the hazard be increased by any means within the control or knowledge of the insured, where the evidence is sufficient to submit the question whether the hazard had been increased in the jury, an instruction that, if the risk had been increased by using the house as laundry, but not within plaintiff's knowledge or control, the policy would not be rendered void, is proper.Northern Assur. Co. of London, England, v. Crawford, 59 S. W. 916.

a

seed oil factory" and that it was usual to run them in connection with such factories they should find for the insured, see Ann. 1188.)

(6) As to Waiver of Transfer of Property.-Where the issue whether a forfeiture by a sale has been waived by the adjuster, an instruction that such forfeiture prevents a recovery by the insured, unless the agent who issued the policy knew of the sale, and agreed to and signed the transfer, is misleading, although the court fully instructed the jury as to waiver in the general charge, no reference thereto being made in the special charge.1203

(7) As to Vacancy. Where the policy provided that if the premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied and so remain for more than thirty days, without notice to the insurer, the policy should be void, and the evidence showed the premises had become vacant, it is error to instruct the jury that if they believed that the house was vacant and unoccupied for a period of thirty days before the fire and if they further believed that the risk was thereby increased, they should find for the defendant.1190 In such a case it would have been proper to charge that the vacancy for over thirty days, at the time of the fire, without notice or consent of the insurer, defeated the right to recover unless the insurer waived the condition.1190 Where the policy provided that it should be void if the building became vacant, and the evidence showed it was vacant at the time of loss, the jury should be instructed to find for the defendant, unless the condition was waived.1218

(8) As to Value of Insured Property.-Where a policy provides that the insurer shall not be liable beyond the actual cash value of the property insured, it is error to instruct the jury to find for the insured in the amount of the policy.1211 The expression "fair market value" used in a charge is equivalent to "actual cash value. ''1200 A charge directing the jury to ascertain the "value" instead of the actual cash value is not error in the absence of a

1207. Where the evidence as to the value of a stock of goods at the time it was burned was positive and uncontradicted in an action against an insurance company to recover for the loss, and showed the loss to be more than the face of the policy, an instruction that the jury should determine from all the evidence the actual cash value of the property covered by the policy, estimating the same according to the actual cash value at the time of the fire, with any deduction for depreciation, however caused, if the jury believed such deduction should made, if not technically correct, did not contain error sufficient to reverse the judgment.-Lion Fire Ins. Co. v. Heath, 68 S. W. 305. 14-Ins.

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1208. A fire policy provided that it should be void if the property were not owned in fee by the insured, or in case of any fraud or false swearing by insured; and in an action on the policy it appeared that a deed of the property had been made to the insured, but all the vendor's lien notes, though due, had not been paid, which was known to the member of insured firm who secured the insurance, and who stated all the facts to the insurance agent. Held, that an instruction to find for defendant if insured made false statements concerning the subject of the insurance was properly modified by the qualification "known to be false at the time."-Underwriters' Fire Ass'n v. Palmer & Co., 74 S. W. 603.

request for a special charge.1183 Where the loss was more than the face of the policy, an instruction that the jury should determine from all the evidence the actual cash value, estimating the same as of the time of the loss, with any deduction for depreciation, however caused, if they believed such deduction should be made, if not technically correct, would not reverse the judgment.1207 (For charge refused under the evidence that the market value after the fire of the personal property insured not having been shown, no recovery could be had, see Ann. 1180.)

(9) As to Total Loss.-It was proper, in case of a total loss, under the statute, to refuse to charge with reference to an offer by the company to repair the property, though the policy provided that this might be done.1209 1210 (For an instruction defining total loss held sufficiently favorable to the insurer, see Ann. 1178.)

(10) As to Compromise and Settlement.-An instruction ignoring the defense of settlement was held erroneous, notwithstanding other instructions.1196 An instruction that a compromise relied upon by the insured had not been shown to have been made by the insurer's authority, and should not be considered by the jury, was properly refused where it was a question of fact whether the agent who agreed upon the compromise acted within his authority, `or scope of apparent authority.1175

(11) As to Fraud.-An instruction to find for the insurer if the insured made false statements concerning the ownership of the insured property was properly modified by the qualification "known to be false at the time" where a deed to the property had been made to the insured but certain vendors' lien notes were outstanding.1208 Where, after a fire, the insured presented the insurer the books kept by him which did not mention goods recently shipped

1209. Since by Rev. St. Art. 2971, an insurance policy is a liquidated demand against the company for the amount of the policy, in case of a total loss, it was proper, where total loss was shown, to refuse to charge with reference to an offer by the company to repair the property, though the policy provided that this might be done.

Commercial Union Assur. Co. of London v. Meyer, 29 S. W. 93.

1210. Where the jury found that the building was so injured by fire as to constitute a total loss, the refusal of the court to charge on the question of fixing a partial loss was not reversible error.-Commercial Union Assur. Co. of London v. Meyer, 29 S. W. 93.

1211. In an action on a fire insurance policy, providing that the company shall not be liable beyond the actual cash value of the property insured, it was error to instruct the jury to find for plaintiff in the amount of the policy.-Westchester Fire Ins. Co. v. Wagner, 30 S. W. 959.

1212. Instructions which indicate

that an insurance company was not bound by the redelivery of its policy unless the agent is expressly authorized are properly refused as misleading. Austin Fire Ins. Co. v. Sayles, 157 S. W. 272. See 28 Cent. Dig. Insurance, §§ 1556, 1771.

1213. Where there was no written application, but whatever questions were asked the insured and the answers thereto were oral, an instruction that, if insured truthfully answered the questions asked him by the agent, then, if there was a lien on the property insured, it would not affect the validity of the policy, was erroneous, the agent not being required to inquire whether the subject of insurance was incumbered; and the fact that insured truthfully answered the questions propounded to him did not constitute a waiver of the provision avoiding the policy if the property was incumbered by an undisclosed lien.Mecca Fire Ins. Co. of Waco v. Moore, 128 S. W. 441. See 28 Cent. Dig. Insurance, §§ 1556, 1771.

and that were a part of the stock insured and told the agent that shipments had been made but gave no further information, later telling another agent of the character of the shipments after learning the latter had information of the same, the court should have submitted the issue of fraud on the part of the insured in his dealings with the agents and adjusters and it was not sufficient to submit the issue of fraud in the shipments of the goods.1214 (For an instruction presenting the issue of fraud by excessive demand in the proof of loss, see Ann. 1217.)

(12) As to Proofs of Loss.-Where, after application, the insurer did not furnish blank proofs of loss for fear of losing some of its legal rights, and the adjuster did not say whether it would be necessary to prepare them, there was no evidence warranting a submission to the jury of the question whether the insurer had

waived any conditions of the policy.1222 (For instruction presenting the issue of the effect of non-compliance with the policy as to proof of loss, see Ann. 1216.)

(13) As to Contribution.-A charge is erroneous which deprives one insurer from all contribution from another carrying insurance on the same property and imposes on the first a liability as great as if there had been no other insurance.1191 1186

(14) As to Arson. It is error to charge that the burden of proof is on the insured to show that the loss was an honest one, that is, that it was owing to causes not traceable to the insured or his agency, where the defense is arson.1192

(15) As to Assignment.-An instruction that notification of insurer as to assignment was not sufficient, that assent by the insurer was also required, and that, if notification were given, its assent would be presumed, unless it declined to accept the transfer, is proper.1184 An instruction on the theory that an assignment was made through mistake was warranted where an endorsement of assignment on the policy was made subject to the consent of the insurer, without knowledge or consent of assignees, without consideration, was not delivered and was brought about by the insurer's agent who advised it and the insured being ignorant, followed the advice.1223

(16) Miscellaneous. For instructions on the following issues: Co-Insurance, see Ann. 1176; Pro Rata Liability, see Ann. 1186; Rents, see Ann. 1177; Excepted Causes, see Ann. 1219; Measure of Damages, see Ann. 1185; Fall of Building, see Ann. 1187; Misdescription of Property, see Ann. 1189; Loss of Personal Property, see Ann. 1199; Representations, see Ann. 1220; Interest, see Ann. 1201,. 1202; Insurer Selecting Itself to Carry Insurance, see Ann. 1181. Argument of Counsel.-Where the insurer admitted that the insured had a good cause of action except as defeated by the insurer's

1222. Insured in a fire policy, having suffered a loss, wrote the general agents of the company, asking for blanks on which to prepare proofs of loss; and the agents answered that if they were to furnish proofs of loss, and there should be any litigation, such action might be held a waiver of a defense under the policy, and that insured could doubtless procure a blank proof of loss at any book store. Subsequently the adjuster arrived and examined insured's books, but the adjuster did not state whether it would be necessary for insured to get up proofs of loss or not. Held, in an action on the policy, that there was no evidence warranting a submission to the jury of the question whether the insurer had waived any conditions of the policy.-Fire Ass'n of Philadelphia v. Masterson, 61 S. W. 962, 25 Tex. Civ. 518.

1223. In an action on a policy con

taining the clause that the policy should be void if an assignment thereof was made before loss, the evidence showed that on the back of the policy was indorsed an assignment, subject to the consent of the insurance company, that it was executed without the knowledge or consent of the assignees; that the insured never received any consideration for the assignment, and neither it nor the policy was ever delivered to the assignees;, that the making of the indorsement was brought about by an insurance agent, who advised the insured to have the assignment made, and insured, being ignorant, followed the advice and executed the assignment accordingly. Held, the evidence was sufficient to warrant an instruction on the theory that the assignment was made through mistake.-Pennsylvania Fire Ins. Co. v. Waggener, 97 S. W. 541. See 28. Cent. Dig. Insurance, §§ 1771-1784.