On Motion for Rehearing.
Appellees earnestly insist that we erred in our holding that the trial court erred in his refusal to submit to the jury special instruction No. 1, as requested by appellant.
“The court erred in the above holdings, for the reason there is no pleadings in the record made by the appellant in the trial court on which to- base the proof that said damaged goods had a value. It is an elementary principal of law that he who seeks to establish an affirmative fact must plead the case before he can prove it; in this case there is no allegation, either directly or indirectly, that there were any damaged goods at all, or that such goods had any value.”
This assignment of error would have to be sustained if consistent with the facts in this particular case.
Defendant answered by general demurrer, plea of not guilty, an.d general denial. Under a general denial the defendant would be permitted to prove any and all defensive matter.
On page 89 of the statement of facts we find the following statement in the affidavit made by the plaintiff Mrs. Velma Oashion:
“The following is a list of household goods, total loss and partial damage by fire on December 24, 1923, at 7:30 p. m., This list is furnished for the purpose of collecting insurance under Hawkeye Securities Insurance Company policy No. 5027, issued to myself, Mrs. Velma Cashion.”
Then again, on page 92, statement of facts, plaintiff swears, in effect, that the value of goods entirely destroyed was $1,673, and value of goods damaged was $217.
Hence we conclude that both the pleadings and evidence were not only sufficient to justify the court in giving said special requested charge, but that it was error to refuse to give same.
Motion for rehearing overruled.