On Motion for Rehearing.
We have carefully considered the motion for rehearing by plaintiff in error. The questions therein presented have been disposed of on original hearing, and, after a due consideration of the further argument and authorities, we adhere to the conclusion already reached without a further discussion of the questions involved, and accordingly the motion for rehearing by plaintiff in error is overruled.
The defendant in error has likewise filed a motion for rehearing, in which he points out for the first time evidence appearing in the statement of facts which shows without contradiction that MeCutcheon, the local insurance agent with whom plaintiff negotiated for the insurance, and who delivered the policy to the plaintiff and collected from him the premium, was informed Of the theft of the car and its destruction by fire on the morning following the loss of the car, and then and there promised to write out a claim for the plaintiff and send in proof of the loss to the company. The proof further showed that, at the request of MeCutcheon, plaintiff went to Wichita Falls with him, where he met Mr. Moore, the company’s adjuster, who wrote up a statement and had plaintiff sign it, saying that he wanted it to send to the defendant company in order that it might be paid. The proof further showed that on November 29, 1922, R. R. Moore, adjuster for the defendant company, wrote plaintiff a letter calling his attention to the fact that the writer had several times personally discussed'plaintiff’s claim against the defendant company on account of the theft and subsequent burning of the automobile described in the'insurance policy, and that the writer regretted to inform the plaintiff that the defendant company would not pay the claim, by reason of the fact that the policy was void, according to its terms and conditions. The letter further stated that if plaintiff would surrender the “policy to Mr. C. E. MeCutcheon of Burkburnett, the broker'with whom you placed the insurance on this automobile, he will return to you the check for the premium paid on said policy.” According to the testimony of witness Robbins, the date of the trip made by Owens to the office of Moore, the adjuster, was 3 or 4 days after plaintiff reported the loss of his car.
In Delaware Underwriters v. Brock, 109 Tex. 429, 211 S. W. 779, it is held to be the settled law of Texas that a denial of liability by an insurance company matures the claim for loss, based on a policy upon which the suit was instituted.
In view of the evidence referred to above, we are unable to say with certainty that the court allowed interest in an amount in excess of what should have been allowed. At all events, if there be excess, the amount is too small to merit consideration under the maxim de minimis lex non curat.
Accordingly, the motion for rehearing by defendant in error is granted, and the judgment of this court on original hearing will be so changed as to affirm the judgment of the trial court in its entirety, and all costs of appeal, as well as that incurred in the trial court, are adjudged against plaintiff in error.