Insurance — Vacancy of Premises — Cases Distinguished.
Refusing a writ of error, the court distinguish the decision of the Court of Civil Appeals in this case upon the facts from that upon the former appeal in which a writ of error was granted. (See Ins. Co. v. Kempner, 25 S.W. Rep., 999; s. c. 87 Tex. 229, same opinion, 27 S.W. Rep. 122; 12 Texas Civ. App. ___; same opinion 34 S.W. Rep., 393.)
BROWN, ASSOCIATE JUSTICE.
When this case was before this court at a former term, the facts found by the Court of Civil Appeals showed that the house in question was vacant from Saturday night until the next Wednesday, a period of three days. The case having been reversed by this court, upon another trial the plaintiff recovered judgment against the insurance company, and upon appeal that judgment was affirmed by the Court of Civil Appeals. The facts found by the Court of Civil Appeals on the second appeal show that the house was at no time vacant, and therefore the ground upon which the case was reversed by this court does not exist in the present state of facts. For the reason that the facts show that there was no vacancy, and therefore no forfeiture of the policy, the application for writ of error in this case is refused.
Writ of error refused.