dissenting on Motion for Rehearing.
A careful consideration of the record and respondents’ motion for rehearing convinces the writer that the facts introduced in evidence were sufficient, in the absence of objection to the court’s charge, to constitute some evidence of the amount in controversy. I, therefore, respectfully dissent.
My view is simply this: The question of the failure to introduce the policy itself was not, in my opinion, specifically called to the attention of the trial court by the petitioner in its two motions for instructed verdict, its objections and exceptions to the court’s charge, or its original motion for new trial. In fact, no mention was made of the absence of proof of the insurance policy itself until the filing of a 76-page amended motion for new trial. Rule 268, Texas Rules of Civil Procedure, was designed to protect the litigants and to prevent the trial court from being trapped into error. The evidence which was introduced, including the proof of loss, without objections, conclu-
*69sively shows the amount of the policy. In any event, had the petitioner complied with the rules and specifically called the matter to the attention of the trial court, the absent policy could have been easily supplied. The petitioner did furnish the original proof of loss, and the authorized agent of the petitioner testified to facts which were reasonably calculated to lead the jury to believe that he (the agent) furnished Klein the very blank which was used in filling out the proof of loss. No issue was drawn as to the coverage. The proof of loss was admitted without objection and without any limitations. From Klein’s testimony, and from a reading of the evidence as a whole, I have reached the conclusion and, in my opinion, the trier of the facts could have concluded that the agent who furnished the proof of loss made an admission to Klein that the facts contained in the proof of loss were the true facts involved. The proof of loss included the fact that the coverage afforded by the policy was $40,000.00. The real controversy between the parties was not the amount of the policy, but the ultimate issue was the contention made by the petitioner that the loss was not due to lightning, but that it was due to an accumulation of water upon the roof of the building causing it to collapse. In my opinion, this was the matter referred to in petitioner’s first motion for instructed verdict. The jury found, in answer to Issue No. 1, that lightning was a proximate cause of the damage to the building in question. The jury found against the petitioner on its defenses that the type and condition of the roof, coupled with the collection of rainwater on the roof just before August 9, 1955, were each the sole proximate cause of the cave-in of the roof. Petitioner’s motions for instructed verdict are silent on the question of the amount of the policy. The motions primarily urge that the evidence shows beyond a question of doubt that lightning, as such, did not hit the building of the respondents, and did not directly or proximately cause the roof of the building to cave in. The very ultimate issues as submitted admit that a policy had been issued. The motion for rehearing states that the policy was before the trial court when the charge of the court was being prepared. The petitioner lost its case and now comes to this Court with an amended motion for new trial, and for the first time complains in said amended motion that no proof of the coverage provided in the policy was made. The original majority opinion states that the record does not reflect whether this omission (meaning failure to introduce the policy) was through oversight or was by design. I cannot conceive of anything the respondents would want to hide or that they could have hidden had they so desired. Of course, the petitioner had the record of the policy and certainly cannot consistently claim that it was in *70a position to disprove the figures reflected by the proof of loss. The record shows that Mr. Cole, an agent for Aetna, was assigned to adjust the claim. There was some discussion between Cole and Klein in regard to the claim. The petitioner failed to object to that portion of the proof of loss which recited the coverage to be $40,000.00. It seems to me that this evidence is proof that the policy was for $40,000.00. Under such circumstances, it was the burden of the petitioner to show that its policy was for a smaller amount. My contention is that the proof of loss, especially when it contained all the necessary data, including the amount of the policy, to enable the petitioner to determine its liability and the amount thereof, is prima facie evidence of the facts contained therein. See, 3 Appleman’s Insurance Law & Practice, page 83. The proof of loss under the record in this case is not merely an ex parte statement. The policy was available. The petitioner failed to offer any proof that the amount of the policy was any sum other than that stated in the proof of loss, and failed to properly and timely call to the attention of the trial court the failure to actually introduce the policy. Of course, the proof of loss was not offered to prove the amount of coverage in the insurance policy, but the fact remains that it was admitted without objection, and the petitioner, at no stage of the proceedings, when the omission could have been easily supplied, indicated that the respondents’ case had failed because of the failure to introduce the policy in evidence. In other words, the parties have tried the case, so far as the trial court was concerned, just as though it was stipulated in the trial that the policy was for $40,000.00. Considering the record, the evidence was competent. The petitioner should not be allowed to sit silent and lead his adversary and the' trial court to believe that the manner of presentation of evidence is satisfactory, and make no contention that the type of proof was not evidence of the amount of the policy. I cannot agree that respondents’ have waived their right to complain of the obvious deficiency of petitioner’s two motions for instructed verdict. Since the petitioner failed to preserve the point in its motions for instructed verdict, there was nothing for respondents to waive. The petitioner, and not the respondents, waived a known right and duty, as required by the rules, to call the matter of failure to introduce the policy to the attention of the trial court at a time when the omission could have been easily supplied.
The policy, no doubt, would have been the best evidence, but I submit that the failure to introduce the policy was not fatal to respondents’ case. As was said in the case of Sloan Lumber Co. v. Southern Ornamental Iron Works, Texas Civ. App., *7166 S.W. 2d 722, no writ history: “To allow the opposition to sit silently and lead his adversary to believe the manner or presentation is satisfactory, and then when the doors to correction are closed to push him out of the temple of justice, does violence to our conception of right.” The parties have treated the proof of loss as being evidence. There is no claim that the policy does not provide for coverage in the event of loss as the result of lightning. The proof of loss was introduced in evidence, and the petitioner furnished the original to be introduced in evidence without restrictions, and cross-examined the witnesses in regard thereto. Petitioner failed to refer to the matter in its two motions for instructed verdict, therefore should not be permitted to upset the verdict of the jury and judgment of the trial court with belated assignments of error contained in an amended motion for new trial.
I would affirm the judgments of the trial court and the Court of Civil Appeals.
Opinion delivered June 24, 1959.
Second motion for rehearing overruled July 22, 1959.