author: DAVIS, Justice.

text:
    James M. MOORE, Appellant, v. Henry J. MAULDIN et al., Appellees.
    No. 7823.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1967.
    Rehearing Denied Dec. 12, 1967.

      Bob Roberts, Gallagher, Wilson, Berry & Jorgenson, Dallas, Jason Smith, Kenley, Boyland & Hawthorn, Longview, for appellant.
    Ramey, Brelsford, Flock & Devereux, Tyler, R. L. Whitehead, Longview, for appellees.
   DAVIS, Justice.

A tort action by plaintiff-appellant, James M. Moore, against defendants-appellees, Henry J. Mauldin and Donald W. Mc-Collum because of a three car collision which occurred on U. S. Highway 80 in the city limits of Gladewater. After appellant filed his original petition, appellee Mauldin filed a cross-action against appellant and appellee McCollum. Appellee McCollum filed a cross-action against appellant and appellee Mauldin. The case was tried to a jury. Subsequent to the retirement of the jury, the cross-action filed by appellee Mauldin against appellant was settled and withdrawn from the jury’s consideration. The jury found that all three parties were guilty of actionable negligence. A take nothing judgment was signed and entered as to all parties. Appellant has perfected his appeal. He brings forward eight points of error.

By his points one through five he says the trial court erred in overruling his motion to disregard, for mistrial, and amended motion for new trial because the answer of the jury to Special Issues 10, 15, 15a, 16 and 16a is against the great weight and preponderance of the evidence, and is insufficient to support the same.

Special Issues Nos. 10, 15, 15a, 16 and 16a, with the trial court’s instruction and definitions, and the jury’s answers thereto, read as follows:

“SPECIAL ISSUE NO. 10
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate James M. Moore for the injuries, if any, proximately caused by the collision made the basis of this suit, taking into account such of the following elements as you find by a preponderance of the evidence to have been suffered by James M. Moore, as a proximate result of such collision and no others:
(a) Physical pain, suffering, and mental anguish, if any, suffered in the past by James M. Moore from the date of the collision up to the present date:
(b) Reasonable medical expenses, if any, necessarily incurred by James M. Moore in the future for his proper treatment and care:
(c) Loss of earning capacity, if any suffered by James M. Moore in the. future:
(d) Physical pain, suffering, and mental anguish, if any, suffered by James M. Moore in the future.

Answer this Special Issue by stating the amount, if any, in dollars and cents.

ANSWER: None”
“SPECIAL ISSUE NO. 15:

Do you find from a preponderance of the evidence that at the time, place and on the occasion in question J. M. Moore failed to make a proper application of his brakes?

By the term ‘Proper application of brakes’ is meant such an application of brakes as would have been made by a person of ordinary care and prudence under the same or similar circumstances. If you so find, let the form of your answer be: ‘HE FAILED TO MAKE PROPER APPLICATION OF HIS BRAKES’: otherwise, let your answer be ‘HE DID NOT FAIL.’

ANSWER: HE FAILED TO MAKE PROPER APPLICATION OF HIS BRAKES”.

“SPECIAL ISSUE NO. 15-A:

Do you find from a preponderance of the evidence that such failure, if any, to make proper application of brakes, as you have found in answer to the preceding special issue, if you have so found, was a proximate cause, as defined herein, of the Moore-Mauldin collision?

Answer ‘Yes’ or ‘No’.
ANSWER: Yes”
“SPECIAL ISSUE NO. 16:

Do you find from a preponderance of the evidence that at the time, place, and on the occasion in question J. M. MOORE failed to keep a proper lookout ?

You are instructed that by ‘proper lookout’ as used in this issue is meant such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances. If you have so found, let the form of your answer be:

‘HE FAILED TO KEEP A PROPER LOOKOUT’: otherwise let your answer be: ‘HE DID NOT FAIL’.

ANSWER: HE FAILED TO KEEP A PROPER LOOKOUT.”

“SPECIAL ISSUE NO. 16-A:

Do you find from a preponderance of the evidence that such failure, if any, to keep a proper lookout, as you have found in answer to the preceding special issue, if you have so found, was a proximate cause, as defined herein, of the Moore-Mauldin collision?

Answer: ‘Yes’or‘No’.
ANSWER YES”

Actually, this case involves two separate collisions. The first occurred between ap-pellees Mauldin and McCollum. The second occurred when appellant Moore, who was traveling east on Highway 80, struck ap-pellee Mauldin. McCollum was traveling west on Highway 80, and he and Mauldin side-swiped each other. •

It seems to the writer that the provisions of Rule 329b, Sec. 4, Texas Rules of Civil Procedure, are mandatory. Rule 324, T.R.C.P. makes it mandatory to file a motion for new trial to preserve the points of error in all cases tried before a jury. In checking the phraseology of Rules 324 and 329b, § 4, one is just as mandatory as the other. The amended motion for new trial was NOT presented to the trial judge within thirty (30) days as required by Rule 329b, § 4. Therefore this writer firmly believes that the appellant has waived each point of error by not giving the trial judge a chance to correct any errors he might have made. As the record now stands, this Court must assume that the trial judge carefully considered each point raised by the amended motion for new trial, and, in truth and in fact, overruled them. Although, we know that he did not.

The only error, or errors that a Court of Civil Appeals can consider in cases tried before a jury, and a judgment is entered on the jury verdict, are the errors that are raised in an original motion for new trial or an amended motion for new trial and actually presented to the trial judge as required by Rules 324 and 329b, Sec. 4; or a fundamental error, if such exists.

The jury found appellant guilty of actionable contributory negligence in failing to keep a proper lookout and in failing to make a proper application of his brakes and that each act was a proximate cause of the collision when it answered Special Issues Nos. 15, 15a, 16 and 16a. The appellant says the evidence is insufficient to support the answers; and the answers are against the great weight and preponderance of the evidence.

We have carefully considered all the evidence and find it to be factually sufficient to support the jury’s answers thereto and it is not contrary to the great weight and preponderance of the evidence. See Points of Error, 38 Tex.L.Rev. 361 (1960), Calvert, No Evidence and Insufficient Evidence. We will not go into detail of what facts were proved. The jury findings on these issues are binding and supported by the great weight and preponderance of the evidence. Benoit v. Wilson, Tex.Sp.Ct. (1951), 150 Tex. 273, 239 S.W.2d 792; Lewis v. Martin, Tex.Civ.App. (1938), 120 S.W.2d 910, wr. r.; Cronk v. J. G. Pegues Motor Co., Ct.Civ.App. (1943), 167 S.W.2d 254, W.R., W.O.M.

Since the jury found appellant guilty of actionable negligence, it was not under any duty to find that the appellant had suffered any amount of damages for injuries. That is what appellant complains about as to the jury’s answer to Special Issue No. 10. The points are overruled.

By his points six and seven, appellant says the trial court erred in overruling his objections to special issues 15 and 16 for the reason that the same, as submitted, is vague and does not in any way designate or limit the time inquired about therein.

Appellant’s objections to special issue No. 15, reads as follows:

“Plaintiff objects and excepts to Special Issue No. 15 for the reason the same—and the definitions contained therein, fails to properly state the duties of the plaintiff as respects proper application of his brake. Plaintiff in this connection requests the following definition concerning Special Issue No. 14:
“ ‘By the term “PROPER APPLICATION OF BRAKES” is meant that application of brakes as would have been made by an ordinary person in the exercise of ordinary care and prudence under the same or similar circumstances.’ ”

A careful examination of appellant’s objection to special issue No. 15 shows that it does not distinctly point out the error that he has raised on appeal. Rule 274, T.R.C.P. The point of error as to special issue 15 has probably been waived. Rule 274, Supra, and the cases cited thereunder.

Anyway, we hold that the special issues were properly submitted. Doornbos v. Looney, Tex.Civ.App. (1942), 159 S.W.2d 155; Serna v. Cochrum, Tex.Civ.App. (1956), 290 S.W.2d 383, w.r., n.r.e. The points are overruled.

We have carefully examined appellant’s point of error number eight, and find it to be without any merit. The point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Blanch D. DAY, Appellant, v. Ralph DAY et al., Appellees.
    No. 11552.
    Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1967.
    Rehearing Denied Dec. 13, 1967.

      Russell G. Ferguson, Austin, for appellant.
    McKay & Avery, Michael A. Wash, Austin, for appellees.
   HUGHES, Justice.

This suit was brought by Blanch D. Day, appellant, as the surviving wife of Vernon Day against Ralph Day, Carl Day, Rudolph Day and Earl Day, brothers of Vernon Day, Hazel Harris, a sister, and Harry T. Wilson, surviving husband of Louise Wilson, a sister (through adoption) who died after the death of Vernon Day, for partition of realty located in Austin, Travis County, Texas, consisting of a residence and two lots on which it was located. The value of the property was alleged to be $7,640.00.

It was further alleged that Vernon Day died intestate and that no administration was necessary on his estate; that appellant and Vernon Day had occupied the property as their home from the date of their marriage until the death of Vernon Day, October 31, 1964; that appellant continued to occupy the property until February 4, 1965, when she vacated the property.

Appellant also alleged that the property was incapable of partition in kind, that she owned an undivided one half interest in the property and a life estate in the other one half interest and that each of appellees owned an undivided one twelfth (¾2) interest in the property subject to her life estate.

Appellant alleged that improvements to the property from community funds of her and Vernon Day had been made and she was entitled to a charge in her favor for such improvements.

The prayer of her petition was for sale of the property and for partition of the proceeds after allowing her credit for the value of the improvements and of her life estate.

A general denial was filed by Hazel Harris, Carl, Rudolph and Earl Day. The other defendants, although duly served with process, did not answer.

Trial was to the court without a jury. Judgment was rendered that appellant take nothing by her suit, the court finding that she “has failed to prove a prima facie case for partition of” the property described.

We are at a loss to understand the finding of the trial court that appellant failed to make a prima facie case. We have studiously read the statement of facts and the evidence is uncontradicted that appellant and Vernon Day had been married and had lived together on the property in suit for about twenty five years. Also, uncontradicted is the relationship of the parties and their ownership of the property in the proportions above stated. That the property is incapable of partition in kind among the owners is obvious.

We sustain appellant’s point that this finding of the trial court was against the great weight and preponderance of the evidence.

The right of cotenants to recover for improvements made to the jointly owned property and the duty of the court to adjust equities in a partition suit is well established. See Partition, Tex.Jur.2d, particularly Secs. 30-33.

Appellant attempted to prove these matters but she was dissuaded by rulings of the court. She should be permitted to develop this phase of the case.

With reference to the possessory homestead rights of appellant, the evidence is not adequate to find, as a matter of law, that she has not abandoned her homestead rights. An issue of fact is usually presented when this question is raised. See 28 Tex.Jur.2d, Homesteads Sec. 139.

If the pleadings of appellant are too general as to improvements and charges for which appellant desires proper credit, then appellees should except to such pleadings and secure rulings of the court. Ap-pellees did not except to appellant’s Petition. It is too late to make objections to the testimony on such grounds on the trial. Rule 90, Texas Rules of Civil Procedure. See Pleading, Tex.Jur.2d, Secs. 186 and 288.

We will briefly discuss other matters which may arise on retrial.

Pedigree, family relationships, including marriage, may be established by hearsay evidence such as declarations of a deceased member of the family. See Evidence, Tex.Jur.2d, Sec. 644. The declarations of Vernon Day, written or oral, are admissible on matters of family history including the issue of his marriage to appellant if testified to by a competent witness or contained in a properly authenticated document. The income tax return of Vernon Day showing it to have been a joint return of him and appellant as his wife is admissible to such extent on the issue of their marriage.

Appellant should be permitted to testify that she draws a Veteran’s pension from the United States government as the widow of Vernon Day. This is not a transaction with the decedent Vernon Day within Art. 3716, Vernon’s Ann.Tex.Civ.St. Vernon Day could not dispute this fact from his own personal knowledge. This is the test. Dakoff v. National Bank of Commerce, Tex.Civ.App., Dallas, 254 S.W.2d 550, writ ref. The same ruling should apply to Social Security payments.

Other questions presented should not arise on retrial and we forego a discussion of them.

Not briefed but a question which may arise is the competency of appellant to testify to her marriage with Vernon Day. If proper objection is made to such testimony, it is inadmissible. Art. 3716, supra, Edelstein v. Brown, 100 Tex. 403, 100 S.W. 129.

The judgment of the trial court is reversed and this cause is remanded.

Reversed and remanded.


author: FANNING, Justice.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. John Edward HUTCHINSON, Appellee.
    No. 7853.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 31, 1967.
    Rehearing Denied Dec. 5, 1967.
    Victor Hlavinka, Norman C. Russell, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   FANNING, Justice.

Appellant insurance company has appealed from a total permanent disability judgment rendered in favor of appellee in a workmen’s compensation insurance case tried before a jury.

The primary dispute in this case relates to whether or not appellant was providing workmen’s compensation insurance to ap-pellee’s employer at the time of the injury sued upon. (Plaintiff-appellee initially sued appellant and another insurance company, Commercial Union Insurance Company of New York, jointly. However, Commercial Union was dismissed from the case and issues were submitted to the jury only with respect to appellee’s case against appellant). Appellant issued a written workmen’s compensation insurance policy covering appellee’s employer purporting to be effective on May 6, 1964, which was sixteen days after plaintiff-appellee’s alleged injury. Plaintiff-appellee pled and offered proof that defendant-appellant’s local recording agent, Eldon Glass, at DeKalb, Bowie County, Texas, prior to plaintiff-appellee’s injuries, orally bound defendant-appellant insurance company for workmen’s compensation insurance to cover Don Har-irson Chevrolet Company, plaintiff-appel-lee’s employer at DeKalb, Texas.

The Jury, in response to special issues submitted, found to the effect: (1) Plaintiff sustained total disability following his injury; (2) said injury was a producing cause of said total disability; (3) such total disability began on April 20, .1964, (which was the date of injury); (4) such disability has been or will be permanent; (issues 5 through 10 were not answered) ; (11) the average weekly wage of plaintiff as of the date of his injury was $90.00; (12) that Eldon Glass, within a six months period after April 20, 1964, represented to the plaintiff that he, the plaintiff, should not worry about a thing because he, Eldon Glass, would take care of filing a claim for the plaintiff; (13) that plaintiff relied on such representations; (14) that such a belief prevented plaintiff from filing his claim up to and until the time it was filed ; (IS) that plaintiff’s such reliance constituted “good cause” for not filing his claim sooner than it was actually filed; (16) that a binder for workmen’s compensation insurance coverage binding United States Fire Insurance Company, covering the employees of Don Harrison Chevrolet Company, was made by Eldon Glass prior to April 20, 1964; (17) that there was such a binder in effect on April 20, 1964; (18) that Eldon Glass represented to Don Harrison, or his agent or employee, prior to April 20, 1964, that there was a binder for workmen’s compensation insurance on the employees of Don Harrison Chevrolet Company; (19) that such binder was represented to be with United States Fire Insurance Company; (issues 20, 21 and 22) that Don Harrison or his agents and employees believed such statements and relied on such representations; and such belief prevented Don Harrison from obtaining workmen’s compensation insurance coverage elsewhere.

Appellant by its first and second points contends to the effect that the trial court erred in admitting testimony of the appel-lee to the effect that he was told by Eldon Glass after the occurrence of the alleged injury that workmen’s compensation insurance was furnished by United States Fire Insurance Company so as to cover said alleged injury over the objections that same was hearsay and called for an opinion or conclusion that invaded the province of the jury. Appellant among other points also contends to the effect that there was no evidence of probative force and insufficient evidence to show insurance coverage by it.

Eldon Glass was the lawfully appointed and duly designated local recording agent for United States Fire Insurance Company at DeKalb, Texas. He had the authority generally given to a local recording agent. He had been the local recording agent of appellant since July, 1961. Eldon Glass, as appellant’s local recording agent, had authority to make a contract for workmen’s compensation insurance with Don Harrison Chevrolet Company of DeKalb, Texas, the employer of appellee. These facts were proven by interrogatories to appellant and by answers of appellant to requests for admissions. Eldon Glass was also the local recording agent for Commercial Union Insurance Company and he represented a number of other insurance companies during the period in question from January 1, 1964, through May, 1964, and for some time thereafter until 1965. Don Harrison Chevrolet Company had obtained insurance coverage through Glass’s agency over a period of years. Over several years’ period Glass had placed Harrison’s workmen’s compensation insurance coverage with at least four different carriers. On January. 1, 1964, Harrison’s workmen’s compensation insurance policy with Commercial Union, previously written by Glass in 1963, expired.

Eldon Glass was called to the witness stand by appellee under the adverse party rule, and he testified that he was the local recording agent of appellant from 1957 to 1965. Appellee was injured on April 20, 1964, while working for Don Harrison Chevrolet Company.

Mr. Glass testified to the effect that he had a conversation with Mr. Hodges, the bookkeeper of the employer, sometime between January 1, and May 6, 1964, and told him that he would cover Don Harrison Chevrolet Company with workmen’s compensation insurance. Glass also testified to the effect that he had made a statement that United States Fire Insurance Company would be the only one that you could place responsibility for this coverage.

Appellant insurance company furnished Eldon Glass with drafts bearing their name for him to pay claims. Although these draft forms were designed for paying fire and property losses, Mr. Glass filled out several of these drafts payable to appellee for workmen’s compensation. Mr. Glass’ procedure in this respect was to write out the draft which had appellant’s name printed on it and which was a form furnished Glass by appellant, and Glass made said drafts payable to appellee as workmen’s compensation weekly benefits, and Glass would have appellee endorse the draft and Glass would have appellee return to him the draft and Glass would pay appellee cash therefor. Appellee was thus paid workmen’s compensation for several weeks by Glass in the manner above indicated. The record indicates that Glass kept these drafts in his desk after he cashed them for ap-pellee, and that he did not send them through the bank for collection upon his principal, United States Fire Insurance Company.

Mr. Glass further testified to the effect that the normal procedure for placing insurance is to first place a binder. Mr. Glass related that appellant got 90% of $707.31 as its fee for issuing the insurance, which premium was paid by the employer to Glass as it was billed by Glass. Mr. Glass further testified that there would have been a binder prior to the date of the policy.

Mr. Glass also testified that appellant knew about the loss or injury of April 20, 1964, when the policy was dated as of May 6, 1964.

Don Harrison, the employer, testified that in the latter part of January, 1964, Mr. Glass told him that his company was under binder for workmen’s compensation and that Mr. Glass named a specific company that the binder was with but he did not remember the name of the company.

Mr. Hodges, the employer’s bookkeeper, testified that Mr. Glass stated to the effect that his employer was covered by workmen’s compensation insurance and that such conversation occurred between January 1, 1964, and April 20, 1964.

Nick Atchley, an employee of Don Harrison, testified that he overheard a conversation between the month of January, 1964, and the time Mr. Hutchinson was hurt in April, 1964, wherein Mr. Glass stated to the effect that there was a binder for workmen’s compensation insurance for the employer, Don Harrison Chevrolet Company.

Appellee testified to the effect that Mr. Glass told him that he was covered by workmen’s compensation insurance by a binder with appellant, United States Fire Insurance Company, and that Mr. Glass told him the name of the insurance company “right after I got hurt”. Appellee Hutchinson’s testimony with respect to his discussion of workmen’s compensation coverage with Glass and appellant’s objections thereto are quoted below.

The law problems posed by appellant’s first and second points with respect to the admissibility of the local recording agent Glass’ statements to appellee Hutchinson are many and varied. Involved are not only questions of agency but the power and authority of a local recording agent under Art. 21.14 of the Texas Insurance Code, V.A.T.S. There are many authorities on the various problems involved. We think that on the question of agency, McCormick & Ray, Texas Law of Evidence, Second Edition, Volume 2, § 1164, gives an excellent treatise upon various aspects of such problems, citing in its footnotes many of the authorities cited by the parties in this suit, and we quote said § 1164 in part as follows:

“It is generally conceded that an agent’s assertions made within the scope of his authority are, in most cases, receivable in evidence against his principal. The difficulty is to determine when the assertions are within the scope of the agent’s authority. Cases involving assertions made under express authority seldom arise and are easy of solution. The more common case and the one which presents difficulty is that of an admission made under implied authority. As to these the rule is usually stated thus: The declarations or statements of an agent are admissible against his principal when they accompany an authorized act or are closely enough connected with it to be considered a part of the res gestae. Statements made subsequent to an act or transaction are treated merely as narrations of past facts and are not admitted against the principal. For example, in personal injury actions the declarations of an agent or servant as to the cause of the injury or the manner in which it occurred are frequently excluded under this rule.
“The requirement that the statement offered as an admission must have been made at the time the agent was doing some act concerning which it was made, doubtless results from a confession of the exception to the hearsay rule for admissions with the exception for spontaneous exclamations. Unfortunately the courts discuss the two principles as if there were hut one principle. It is apparent that the two exceptions to the hearsay rule are distinct and unrelated. They have nothing in common and rest upon entirely different grounds. Admissions are received because they are inconsistent with the party’s present position and because he cannot logically object that he has not been allowed to cross-examine himself. The exception for spontaneous statements rests upon the consideration that statements made under the influence of excitement are likely to be true. If an intelligent solution of the present problem is to be had the courts must insist on keeping these two principles separate.
“The requirement that the declaration be a part of the res gestae is probably just another way of saying that the declaration must be made as a part of the performance of an authorized act. Yet some of our courts have treated res gestae as meaning the operative facts of the case in litigation and have consequently excluded statements made in other transactions clearly within the scope of the agent’s authority. They are apparently misapplying the ‘verbal act’ doctrine. Under that doctrine all statements made as a part of a relevant transaction are called ‘verbal acts’ and admitted as such. Since they are not admitted to prove the truth of the facts asserted the hearsay rule is not applicable.
“It is clear that the usual statement of the rule serves merely to increase the difficulty and prevents a rational application of the rule to a particular fact situation, A more accurate statement of the rule would be: The assertions of an agent are admissible against his principal when made within the scope of the agent’s express or implied authority to make assertions. While this general statement does not solve the problem it is at least free from confusion. In the last analysis the application of this general principle to specific instances must be determined by the rules of the substantive law of agency. * * * (Emphasis added.)

For cases dealing with the authority of a local recording agent see the following: New Hampshire Fire Ins. Co. v. Plainsman Elevators, Inc., Tex.Civ.App., 371 S.W.2d 68, wr. ref., n. r. e. (1963); Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59 (1958); New York Fire Insurance Company v. Reed, Tex.Civ.App., 138 S.W.2d 138, writ ref’d (1939); Home Insurance Company of New York v. Roberts, 129 Tex. 178, 100 S.W.2d 91 (1937).

In New Hampshire Fire Ins. Co. v. Plainsman Elevators, Inc., supra, 371 S.W.2d 68, it was stated in part as follows:

“Appellant’s points five, six, seven and fourteen are presented together. All four of these assignments concern a Shantzer Drier. The Shantzer Drier was not installed when the original policy in question was issued but was completed October 31, 1959. The rider to the insurance policy insuring the Shantzer Drier was dated November 25, 1959, and being effective from November 25, 1959. The damage here in question happened on November 6, 1959, being some nineteen days before the date of the rider insuring the Shantzer Drier. Appellant’s points five, six, and seven contend the court erred in admitting the endorsement attached to the insurance policy applicable to the Shantzer Drier; in submitting the issues to the jury relating to the Shantzer Drier, and in granting judgment with respect to the Shantzer Drier. Then the fourteenth point contends the court erred in overruling objections to the testimony of the witness, Silverthorne, with respect to his legal opinion, he not being qualified. It is admitted by the attorney for the appellant that Mr. Silverthorne was a local recording agent of the appellant and Mr. Silverthorne so testified. Mr. Sil-verthorne testified he was called before November 6, 1959, by someone from the appellee’s office for additional coverage. It is also undisputed that appellant knew of the accident here in question before issuing the rider dated November 25, 1959. It is also acknowledged that the appellant received and accepted the premium covering the Shantzer Drier from November 1, 1959. The policy was can-celled April 21, 1960. As to that cancellation Mr. Silverthorne testified as follows:
“Q. Mr. Silverthorne, when you canceled that policy out in April, you canceled it out on a short-term basis ?
“A. No, sir.
“Q. But you did charge insurance on the Shantzer Drier from November 1 until the date it was canceled ?
“A. Yes, sir.
“Q. And as far as anybody denying that this Shantzer Drier was not covered, you are not a party to that denial, are you?
“A. No, sir.
“Q. You say it was covered?
“A. Yes, sir.
“Q. And you were the agent for this company?
“A. Yes, sir.
“Q. You took this man’s money and, as far as you are concerned, it’s covered?
“A. Yes, sir.
(Emphasis added)
“Since Silverthorne was appellant’s recording agent, his authority and the extent thereof was controlled by the provisions of the Insurance Code, Article 21.14, V.A.T.S. New York Fire Insurance Co. v. Reed, Tex.Civ.App., 138 S.W.2d 138 (writ refused); Home Ins. Co. of New York v. Roberts, 129 Tex. 178, 100 S.W.2d 91; Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59.
“In the Shaller case the court stated:
“ ‘As such, his authority and the extent thereof was controlled by the provisions of the insurance code and his designation as the type of agent prescribed therein. The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as writing insurance is concerned and to remove all questions of the local agent’s actual or apparent authority from the field of cavil or dispute.’
“It is stated in 44 C.J.S. Insurance § 266, p. 1070 as follows:
“ ‘The effective date of the policy does not depend on the time of delivery if the parties have agreed on another date, and the policy is effective from the time agreed on, although it is not delivered until after loss. When so stipulated, the policy on delivery may take effect as of a previous date.’
“Appellant’s points five, six, seven and fourteen are overruled. * * * ”

In Shaller, supra (309 S.W.2d 59) a Texas Supreme case, opinion by Justice Nor-vell, it was stated in part as follows:

“ * * * It is undisputed that Howard Williams was licensed by the State of Texas and duly appointed by respondent as its local recording agent. As such, his authority and the extent thereof was controlled by the provisions of the insurance code and his designation as the type of agent prescribed therein. The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as writing insurance is concerned and to remove all questions of the local agent’s actual or apparent authority from the field of cavil or dispute. It follows that subsequent instructions given by the company to recording agents although taking the form of apparent restrictions upon the agent’s authority can be classified only as directives to the agent rather than exceptions or modifications of the agent’s authority which is essentially statutory in nature.
“In Home Insurance Company of New York v. Roberts, 129 Tex. 178, 100 S.W.2d 91 this Court construed Article 5062a, Vernon’s Ann.Tex.Statutes from which Article 21.14, Vernon’s Tex.Ins.Code was largely taken, and directly held that the authority of recording agents is found in the statute and was not subj ect to subsequent restriction even by contractual provisions contained in the policy itself. Following the Roberts case, Mr. Justice Folley speaking for the Court of Civil Appeals in New York Fire Insurance Company v. Reed, 138 S.W.2d 138, wr. ref. said:
“ ‘In making the appointment under Article 5062a the appellant placed its mantle of authority upon Casey’s (the local recording agent) shoulders and, in effect, held him out to the public as an agent authorized to “write, sign, execute and deliver policies of insurance” and to bind the company “on insurance risks", the terms of the policy to the contrary notwithstanding. Under his appointment Casey had as much authority .with reference to insurance risks as any that could possibly have been bestowed by the appellant upon Floyd West & Co. (the general agent). As was said in the Roberts case, Casey “had the authority to speak and act for the company, and transact all the insurance business of the company which it was authorized to transact under its permit from the state". What more authority could Floyd West & Co. have had? We think it evident that in enacting article 5062a the Legislature no doubt had in mind just such circumstances as existed in the instant case. * * * Knowing no doubt that such circumstances as these oft-times worked undue hardships upon an unsuspecting public, the Legislature enacted a law whereby the public, in dealing with fire insurance agents, might have some statutory assurance of the agent’s authority to bind the company’ ”. (Emphasis added)

In Presidential Life Insurance Company v. Calhoun, Tex.Civ.App., 325 S.W.2d 732, writ refused, n. r. e. (1959), it was stated in part as follows:

“1 * * * The declarations made by an officer or agent of a corporation, in response to timely inquiries, properly addressed to him and relating to matters under his charge, in respect to which he is authorized in the usual course of business to give information, may be given in evidence against the corporation * * West Texas Produce Co. v. Wilson, (Supreme Ct. adopted) 120 Tex. 35, 34 S.W.2d 827, 829.”

In other contentions appellant also contends that the local recording agent had no authority to orally bind it on workmen’s compensation insurance, but that only a written policy would bind it. If such contention was correct the evidence complained of by appellant’s 1st and 2nd points would be of no probative force, nor would it be admissible. However we think it is clear that a local recording agent can orally bind his insurance principal upon workmen’s compensation insurance. In this connection, see Travelers Indemnity Company v. Holman, 5th cir., 330 F.2d 142 (1964) wherein it was stated in part as follows:

“Save for regulatory purposes, not in any way here involved, Texas law does not require any particular form, and it recognizes the validity of a binder, a contract to insure, or a contract of insurance regardless of its informality. 32 Tex. Jur.2d, Insurance, § 5, at 29, § 11, at 36, § 12, at 37, §§ 46, 47, at 90-91 (1962). Had the transaction expressly been one in which the Assured described the activities and then asked the underwriter to insure the risk, the Insurer would clearly have been liable had the underwriter stated ‘You are covered’.”

As we view it, appellant in making the appointment of Glass as its statutory local recording agent at DeKalb, Texas, placed the mantle of authority upon Glass’ shoulders and “in effect, held him out to the public as an agent authorized to ‘write, sign, execute and deliver policies of insurance, and to bind the company on insurance risks’ ”, as stated in Shaller, supra, quoting from cases cited therein. And as stated in Shaller, with quotations from cases cited therein, it is clear that Glass under his appointment “had the authority to speak for and act for the company, and to transact all the insurance business of the company which it was authorized to transact under its permit from the state”. Also, Art. 21.14, Sec. 2, Texas Insurance Code specifically provides authority for a local recording agent to "perform the customary duties of a local recording agent representing an insurance carrier in its relation with the public”.

We think that Glass, as local recording agent of appellant, in performing customary duties in the usual course of his business, was authorized to divulge either to Don Harrison Chevrolet Company, the employer, or to appellee Hutchinson, the injured employee, the name of the insurance carrier whom he had orally bound for workmen’s compensation insurance. He did divulge the name of the carrier to Harrison, and Harrison’s employees, prior to the injury, but the name of the carrier was not remembered by Harrison and his employees. Glass divulged the name of the appellant as the carrier of such coverage to Hutchinson shortly after Hutchinson was injured, and started paying Hutchinson compensation by drafts bearing the name of appellant in the manner hereinbefore indicated. The record also indicates that Glass also made other statements which strongly point to appellant as the insurance carrier whom he orally bound for workmen’ compensation insurance coverage.

We hold that under the unusual circumstances and facts in this case and under the authorities hereinbefore referred to, that the trial court did not err in admitting-the evidence complained of by appellant’s points 1 and 2. Appellant’s points 1 and 2 are overruled.

We also hold that the trial court did not err in overruling appellant’s motion for directed verdict and appellant’s motion for judgment non obstante veredicto. We further hold that there was evidence of probative force, which was amply sufficient to support findings, to the effect that appellant had issued an oral binder (through its local recording agent, Glass) for workmen’s compensation insurance coverage to appellee’s employer effective and to be effective, at and prior to the date of the alleged injury. We also hold that such findings are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant raises several points with respect to the question of estoppel. Appellee in his brief states that he does not rely upon estoppel to create an insurance contract between the employer and the appellant. Appellee contends that the insurance contract was created by the oral binder of appellant by its local recording agent. We agree with appellee that the insurance contract in question was validly created by the oral binder in question and therefore deem it unnecessary to write upon questions regarding estoppel or waiver.

We also hold that there was evidence of probative force to support the jury’s finding in response to Special Issue No. 4 to the effect that appellee’s total disability has been and will be permanent, and that there was amply sufficient evidence to support such finding.

Also after carefully considering the entire record in this cause in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), it is our further holding that the jury’s finding in response to Special Issue No. 4, to the effect that appellee’s total disability has been and will be permanent, is not so contrary to the great and overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

All of appellant’s points have been considered. None of them are deemed as presenting reversible error under the record in this case.

We hold that the trial court entered a correct judgment under the record in this cause.

The judgment of the trial court is affirmed.

      . “Q. Now did you ever have a conversation with Mr. Glass as to whether or not there was workmen’s compensation coverage?
      “A. Yes, sir.

        “Mr. Hlavinka: Well the conversation with Mr. Glass would have to be hearsay. We would object to that question and move to strike the answer on that ground.

        “The Court: Overruled. What did he tell you?

        “Mr. Hlavinka: That would be hearsay; we object.

        “The Court: Overruled. Go ahead.
      “A. He said not worry, that I was under workmen’s compensation.

        “Mr. Hlavinka: We further object that that involves a conclusion and an opinion which invades the province of the jury.
      “Q. The Court: Overruled. All right, did he say anything about a binder.
      “A. Yes, sir.
      “Q. What did he say?
      “A. He said * ⅞ *.

        “Mr. Hlvainka: That would be hearsay, if the Court please. We object.

        “The Court: Overruled.

        “Mr. Hlavinka: And if the court please, further we object on the grounds it involves a conclusion which invades the province of the jury.

        “The Court: Overruled.
      “A. He said that the binder had been put on there around the first of the year.
      “Q. Yes, sir.
      “A. But he hadn’t never got around to getting the policy wrote.
      “Q. All right, did he tell you who the binder was with?
      “A. Yes, sir.

        “Mr. Hlavinka: That would be hearsay, if the Court please. Also invades the province of the jury
      “A. United States Fire.

        “Mr. Hlavinka: Hush, please sir. Also invades the province of the jury.

        “The Court: Overruled.

        “Mr. Hlavinka: And if the question has been answered prior to the objection, we move to strike the answer.

        “The Court: Overruled.
      “Q. All right, who did he tell you the binder was with?

        “Mr. Hlavinka: That would be hearsay, and also invades the province of the jury.

        “The Court: Overruled.
      “A. United States Fire Insurance Company.
      “Q. That is the defendant in this case. Is that right?
      “A. Yes, sir.”


author: BARRON, Justice.

text:
    SEARS, ROEBUCK & CO., Appellant, v. Vance HOUGH, Appellee.
    No. 62.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 22, 1967.
    Rehearing Denied Dec. 13, 1967.

      Perry Barber, Jr., John Held, Baker, Botts, Shepherd & Coates, Houston, for appellant.
    O. Joseph Damiani, Houston, for appel-lee.
   BARRON, Justice.

This is a products liability case.

Vance Hough, plaintiff in the trial court and appellee here, filed suit against Sears, Roebuck & Company for property damages to his home, which he alleges were proximately caused by a defective Kenmore washing machine which he purchased from Sears, Roebuck & Company.

Trial was to a jury which found: (1) that plaintiff relied on the written warranty that the washing machine was free from defects in material and workmanship when normal use was made of it; (2) the plaintiff relied upon an implied warranty that the washing machine was free from defects; (3) that the washing machine, from the time of delivery up to the time of the occasion in question, was not free from such defects; (4) that such defect was a proximate cause of the damages to plaintiff’s home; and (5) that the damages amounted to $849.77.

The trial court, on the verdict of the jury, rendered judgment in plaintiff’s favor for $749.77, with interest and costs. The sum of $100.00 was deducted from the amount found by the jury, by agreement. From this judgment, Sears, Roebuck & Company has appealed.

Defendant did not file a motion for new trial, but it timely filed motion to disregard the jury’s answers to each of the special issues, principally on the ground that there is no evidence to support their submission to the jury. The question of the sufficiency of the evidence is not before us. Specifically, the matter for this court’s determination is whether there is any competent evidence in the record to support the jury’s answer to Special Issue No. 3, the controlling issue.

The testimony shows that about January 10, 1965, Hough was notified by his daughter that his house was flooding. The washing machine was overflowing. Hough immediately went home, saw the water damage to his home and called the Sears store giving them a report of the incident. A representative of the seller came out to the house with a carpet man, presumably from Sears, and looked the damages over, but they did nothing. The following day, a man drove up in a Sears truck and identified himself as a Sears repairman. In the presence of Hough, the repairman slid the machine from the wall, took a little hose loose and looked at a series of valves. The man, whose name Hough does not recall, looked at the valve which had a screen over it and found sand from the water line. He told Hough that the sand had probably clogged up the water control valve. He removed the sand, hooked the machine up again and ran it through two cycles, at which time the washing machine apparently began to work properly. However, the washing machine, within a short time, overflowed again. Sears sent another repairman out to the Hough home. He drove a Sears truck and identified himself as a Sears employee. Hough was present when the second repairman, apparently one Harry Gazelas, who later admitted that he was employed by Sears, worked on the machine. Hough told him what had happened and Gazelas asked what the first repairman had done. After being told what the other man had done, Hough testified that Gazelas said, “ * * * the man should have known better than that. He should have replaced that valve. We have had a lot of them hanging.” Gazelas then, in the presence of Hough, took a new valve out of a little box. He replaced the old one and reset the machine for operation. Since that time, the testimony shows, no more trouble has been had with the washing machine, at least up to the time of the trial of this case on March 15, 1967. Most of the testimony was disputed by the defendant, Sears, Roebuck & Company.

In an appeal of this nature where “no evidence” is claimed by an appellant to support the issues as submitted, special issue No. 3 in this case, it is our duty to determine whether there is in this record any admissible evidence of probative force, direct or circumstantial, raising the pleaded controlling issue. Where the facts are controverted or are such that different inferences may be reasonably drawn therefrom, an issue of fact is raised. If that is so, we must affirm the judgment below. Olds v. Traylor, 180 S.W.2d 511 (Tex.Civ.App.), writ ref.

The Supreme Court has recently held that liability for physical harm or property damage can be based upon an implied warranty of suitableness. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967); Franklin Serum Co. v. C. A. Hoover & Son, 418 S.W.2d 482 (Tex. Sup.1967). But those cases are not directly in point here. They deal with strict tort liability. Plaintiff concedes that his case involves a suit upon a written contractual warranty issued by Sears, to the effect that the washing machine was free from defects in material and workmanship. The warranty extended for a period of one year from date of purchase of the machine, November 5, 1964, and the warranty excludes any other or further warranty. The plaintiff’s claim of the existence of an implied warranty of fitness, therefore, cannot be sustained. It is not necessary, however, that we reach the question. See 50 Tex.Jur.2d, p. 463, Sec. 155.

The defendant contends that the statements made to Hough while the repairman, Gazelas, was checking the washing machine and repairing it were not within the course and scope of the repairman’s express or implied authority on behalf of Sears. It is further contended that said statements are hearsay conclusions on the part of the repairman, and whether objected to or not by defendant, they cannot support a judgment in favor of plaintiff by reason of the incompetence of such evidence. We sustain defendant’s contention. As distinguished from a statement of fact by an employee of this type, his conclusion that, “He (the first repairman) should have replaced the valve. We have had a lot of them hanging” is purely a conclusion and is hearsay. Sears is not bound by such testimony, and the evidence is incompetent whether objected to or not. Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379; Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 381. The testimony was inadmissible and amounts to no evidence. Rogers v. Collier, 223 S.W.2d 560 (Tex.Civ.App.), err. ref.; LeSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446; Isaacs v. Plains Transport Co., 367 S.W.2d 152 (Tex.Sup.).

We are convinced, however, that there is testimony in the record and inferences therefrom, aside from the conclusions above mentioned, which require that we affirm the judgment below. The law is well settled in this State that the buyer of goods can recover damages sustained as a result of a breach of warranty, including consequential damages which the seller should have contemplated as a probable result of the breach of warranty. St. Mary’s Oil Engine Co. v. Allen-Morrow Co., 20 S.W.2d 266 (Tex.Civ.App.), no writ; Craftsman Glass, Inc. v. Cathey, 351 S.W.2d 950 (Tex.Civ.App.), no writ. As in this case, in a suit between the original parties to the. contract and warranty, such a rule has long been well established.

The evidence shows that the washing machine was purchased on November 5, 1964. After approximately two months the machine overflowed, and the water damaged plaintiff’s home. No trouble had been encountered with the machine between those dates. Plaintiff personally observed the first repairman disconnect the machine and remove a small amount of sand from the water control valve. The next day plaintiff personally observed the Sears repairman remove the valve and replace it with a new one. After that occasion, no trouble was ever detected in the washing machine again. The evidence is clear that the written one-year warranty was issued by Sears, and that it was delivered to Hough. We think it evident, resolving all inferences from the testimony in favor of plaintiff as we are required to do, that the washing machine was defective on January 10th and 11th, 1965, in that the above mentioned valve was defective, and that such defect proximately caused plaintiff’s damages. Moreover, when the repairman replaced the valve, the machine worked properly and safely and has continued to do so. The jury had the right to infer from such testimony that the valve was defective, and that its replacement with a new one remedied the defect. There is some evidence, therefore, that the Kenmore home laundry washing machine was not free from defects and workmanship as Sears had warranted it to be. Special issue No. 3, dealing with such inquiry, was answered favorably for the plaintiff, Hough, by the jury. We hold that the issue is supported by some evidence. We have not considered the hearsay conclusions of the Sears repairman in reaching this decision.

The judgment of the trial court is affirmed.


text:
    William S. DUGAN, Individually and as Administrator of the Estate of Iris Patience Miller Dugan, Deceased, Appellant, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, Ltd., Appellee.
    No. 27.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1967.
    Rehearing Denied Dec. 13, 1967.

      Ted Allmond, R. Richard Thornton, Galveston, for appellant.
    Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, for appellee.
   BARRON, Justice.

This is a suit on a garage liability insurance policy. W. S. Dugan, individually and as administrator of the estate of his deceased wife, Iris Patience Miller Dugan, filed suit against General Accident Fire & Life Assurance Corporation, Ltd., for automobile medical payments claimed by him which, he alleged, should have been included in the policy when it was issued and which provision was omitted from the policy at the time of issuance. The plaintiff, Dugan, is appellant in this court.

Dugan operated a large service station and its associated activities for a number of years prior to 1963, and had employed one, Rogers, to handle all types of insurance for him, but in 1963, he switched over to Leonard O. Boyle, an experienced insurance man. From 1963 forward, Boyle was the agent of Dugan in connection with the securing and handling of all types of insurance policies. It is conceded that Boyle was never an agent of the defendant .company. At all times material to this suit, Edward Golden, Jr. operated an agency in Texas City and solicited business for various insurance companies including the defendant. Golden had no authority to pass upon risks and issue policies, but he did have authority to forward applications for insurance to the Houston office of defendant company, who actually passed upon the risk and returned the policy for signature of Golden and delivery to the insured, if the policy was written and issued by the company.

On March 6, 1964, Dugan, acting through his agent, Boyle, submitted an application for insurance to defendant through Golden. On the face of the application, among other items, request was made for $5,000.00 maximum medical pay for each occupant of a vehicle operated by the insured, as the result of injuries sustained in an accident. This application was received from Boyle by Golden, who, in turn, forwarded it to the defendant company at Houston. On March 20, 1964, defendant issued its policy AG48810 which had no medical pay provisions in it. The policy was forwarded to Golden by defendant, and Golden, within a few days thereafter, forwarded the policy to Dugan’s agent, Boyle, who in turn forwarded it to Dugan. Dugan received the policy about April 15, 1964. He put the instrument away and did not read it. No premium was charged by defendant for medical payments, and no representations were made by Golden or any agent of defendant company as to the contents of the policy to either Boyle or Dugan. The plaintiff, Dugan, assumed at all material times that he and the occupants of his vehicle were covered with medical payments under the policy.

On August 26, 1964, near Lordsburg, New Mexico, Dugan, while driving one of his cars to California, had an accident in which his wife and daughter were fatally injured and his two other daughters sustained bodily injury. He sues the insurance company for $6,500.00 for medical payments under the policy, together with attorney’s fees, penalty and interest.

Trial was to a jury. At the conclusion of plaintiff’s testimony the defendant made a motion to withdraw the case from the jury. The plaintiff joined in the motion, and the trial court dismissed the jury. Recitation was made in the judgment confirming this action by the trial court. After the trial court had rendered judgment for defendant, the plaintiff requested the trial court to make its findings of fact and conclusions of law. The trial court responded and filed such findings and conclusions. Plaintiff made no objection to any of the actions of the trial court. We are confronted with what amounts to a non-jury trial in which the trial court had exclusive power and authority to make findings upon disputed facts from the evidence as presented. Findings of fact by the jury were effectively waived. 35 Tex. Jur.2d, p. 70, Sec. 33.

Finding of fact number 7 by the trial court is as follows:

“No authorized agent of defendant, nor the defendant, made any agreement with plaintiff or Boyle to issue a policy containing medical pay provisions and no mutual mistake has occurred.”

The trial court concluded from said findings of fact, supported by other findings, that there was no mutual mistake authorizing reformation of policy AG48810.

Mutual mistake warranting the reformation of a written contract is seldom established as a matter of law. In this case there is an abundance of evidence showing lack of authority by Golden to bind the defendant company. There is further evidence from which the trial court could conclude that there was no mutual mistake. It is well settled that a mere soliciting agent cannot bind an insurance company, especially when his powers are limited to receiving and forwarding applications for insurance. Under the evidence, the trial court was empowered to make findings that the agent’s authority was so limited and that there was no mutual mistake. American Nat. Ins. Co. v. Huey, 66 S.W.2d 690 (Tex.Com.App.) ; St. Paul Fire & Marine Ins. Co. v. Culwell, 62 S.W.2d 100 (Tex. Com.App.); Bankers Lloyds v. Montgomery, 60 S.W.2d 201 (Tex.Com.App.); Texas Life Ins. Co. v. Shuford, 131 S.W.2d 118 (Tex.Civ.App.), no writ. It was not shown that Golden was a local recording agent with power to pass upon risks, bind the company and make contracts for it. See ana compare New York Fire Ins. Co. v. Reed, 138 S.W.2d 138 (Tex.Civ.App.), writ ref.; Shaller v. Commercial Standard Ins. Co., 158 Tex. 143, 309 S.W.2d 59; Article 21.09 and Article 21.14(2), Insurance Code, V.A.C.S.

Moreover, it must be kept in mind that plaintiff was at all times represented by an experienced insurance agent, Boyle. When Golden delivered the policy to Boyle, with the medical pay provision omitted, Boyle did not read the policy and made no effort to determine its correctness or to determine whether the policy was written as desired by plaintiff. Under these circumstances, Dugan is bound by the omissions and negligence of Boyle. Continental Cas. Co. v. Bock, 340 S.W.2d 527, 532 (Tex.Civ.App.), writ ref., n. r. e.; Burroughs v. Bunch, 210 S.W.2d 211 (Tex. Civ.App.), writ ref., and cases cited. Boyle was plaintiff’s agent and was not the agent of defendant insurance company. The trial court correctly concluded that Boyle was negligent in failing to advise Dugan and to check the policy, and that plaintiff was bound by such agent’s negligence. In Fireman’s Fund Indem. Co. v. Boyle General Tire Co., 392 S.W.2d 352 (Tex.Sup.), the Supreme Court held that the fact that an insured accepts a policy without noticing a mistake therein would not preclude the insured from having the mistake corrected by reformation, adopting the majority view. See 4 Appleman, Insurance Law and Practice, 858, Sec. 2913 (1941). But we believe that such a rule does not apply where an insured has employed an experienced agent to represent his interests in matters of insurance protection. See Continental Cas. Co. v. Bock, supra. Nor do we interpret the Fireman’s Fund decision as holding that the presumption that an insured knows the contents of his policy is, as a matter of law, overcome by testimony of the insured that he was ignorant of the policy contents when it was accepted. The trial court here found that Boyle’s negligence was imputed to Dugan. We believe the evidence is sufficient to sustain such finding, and that it is effective to preclude recovery by plaintiff under the policy.

In this case no agreement as to medical payments between the plaintiff and the defendant was shown. There was no material agreement between Golden and plaintiff’s agent, Boyle. Golden merely forwarded the application for insurance to the company and the company wrote and issued a policy which excluded the medical pay provision. So far as this record is concerned, the insurance company wrote the policy it intended to write. The law requires that the alleged mistake must have occurred through the reduction of the understanding and agreed intent of the parties to writing, so that the written instrument does not represent their real agreement. We are bound to conclude, with the trial court, that there is no evidence of a prior agreement to support a reformation of the policy to include provisions that are not contained therein. Waco Tap R. R. Co. v. Shirley, 45 Tex. 355 (Tex.Sup.); Continental Cas. Co. v. Bock, supra.

If the agent’s authority to bind the company had been shown,. the trial court’s findings might have been different. But we are bound by the trial court’s findings of fact, which we hold are supported by the evidence.

Plaintiff’s three points of error are that the trial court erred in rendering judgment that appellant take nothing; that the trial court erred in granting appellee’s motion for instructed verdict, and that error was committed by the trial court in holding that appellant and his agent were guilty of contributory negligence in not reading the policy of insurance. In the first place, there was no instructed verdict in this case. The first two points of error above are wholly insufficient, but we have discussed them and other points not specifically raised by plaintiff. See Bell v. Currie, 404 S.W.2d 321 (Tex.Civ.App.), no writ; McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643. We have been able to determine the complaints being made by plaintiff by considering the entire brief. Plaintiff’s points of error are each overruled.

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    INTERNATIONAL SERVICE INSURANCE COMPANY, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.
    No. 14643.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1967.
    Wiley, Thornton & Plumb, San Antonio, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant, hereinafter referred to as International, brought this suit seeking a judgment declaring that appellee, hereinafter referred to as Maryland, had an automobile liability policy in effect on August 28, 1965, on an automobile operated by Arthur B. Curvier, Sr., and that Maryland must share prorata with International on any claims against Curvier by reason of an automobile collision on that date. The principal question is whether Maryland’s policy was cancelled prior to that date. Maryland also urges that notice of the accident was not timely given. The trial court entered judgment non obstante vere-dicto that appellant take nothing by its suit.

A trial court is authorized to render judgment non obstante veredicto only when there is no evidence warranting a submission of the issue to the jury. Rule 301, Texas Rules of Civil Procedure; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). In considering this record under the no evidence test we must consider only the evidence and the inferences tending to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup. 1965).

The facts are largely undisputed. In June, 1965, Curvier, Jr., purchased a 1959 Ford automobile, and on June 15, 1965, he secured an automobile policy issued by Maryland. This policy was purchased through the Van Horn-Goldsbury-Magrane Insurance Agency, hereinafter referred to as VGM Agency, which agency is a local recording agent of Maryland. Curvier, Jr., paid $20.20 down and executed a premium note whereby the balance was payable at the rate of $10.35 each month, commencing July 15, 1965.

On July 21, 1965, Derrel Heginbotham, an underwriter of Maryland assigned to its San Antonio office, wrote VGM Agency and, after pointing out several apparent weaknesses in this risk, requested that the agency return said policy for cancellation within 15 days, or immediately advise the underwriter if he was wrong in his evaluation of the risk. Miss Judy Magro, a general office employee of VGM Agency, discussed this letter with Mr. Magrane, a partner in said Agency, who told her to cancel the policy. On July 23, 1965, she sent a notice to Curvier, Jr., that the policy would be cancelled effective August 4, 1965. This notice was received by Curvier, Jr., and he immediately secured a policy, effective August 5, 1965, issued by International through another agency. Curvier, Jr., also admittedly received and cashed the check sent him by VGM Agency in refund of the unused premium. In the meantime, the superintendent of Maryland’s premium note department at Houston discovered that the July 15, 1965, monthly payment was not made and, without knowledge of the first cancellation notice, sent a cancellation notice on behalf of Maryland cancelling the policy effective August 29, 1965. However, Curvier, Jr., on August 18, 1965, embarked on a Navy ship for Vietnam and never received the second cancellation notice. Before leaving San Antonio, he gave his father permission to operate the car which was involved in a collision on August 28, 1965.

The Maryland policy provides in part that it “may be cancelled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective.” Here written notice was timely given to the insured and not only admittedly received by him, but also understood by him. Curvier, Jr., testified that he believed this policy was thereby cancelled and therefore he bought the International policy. International urges that the cancellation was ineffective in that Miss Magro had no authority to act on behalf of Maryland.

The letter from Maryland’s underwriter gave the VGM Agency the option of either cancelling the policy or of calling the erroneous classification to the underwriter’s attention at its earliest convenience. Mr. Magrane elected to cancel and instructed his employee, Miss Magro, to send the cancellation notice. This was in accordance with the instructions of Maryland and therefore was a cancellation notice exercised by the Company in accordance with the terms of the policy. It is immaterial that Miss Magro was not a local recording or soliciting agent of Maryland, although she had signed the policy in the first place as “authorized representative” of VGM Agency. She was authorized to do so in both instances by her employer who was acting on behalf of the Company.

There is no contention that the second notice of cancellation which was never received by Curvier, Jr., misled him, or any other party, in any manner. It was therefore immaterial. Furthermore, the fact that Miss Magro refunded Curvier, Jr., $10.35 too much money, based upon her erroneous assumption that he had made the July 15, 1965, premium payment, is also immaterial.

Under the undisputed evidence, the policy issued by Maryland was cancelled in accordance with the terms thereof prior to the time of the collision. The trial court did not err in granting a take-nothing judgment non obstante veredicto. Willis v. Allstate Insurance Co., 392 S.W.2d 799 (Tex. Civ.App.—Dallas 1965, writ ref’d n. r. e.); Treadwell v. International Travelers Assur. Co., 60 S.W.2d 536 (Tex.Civ.App.—El Paso, 1933, writ ref’d); Appleman, Insurance Law & Practice, § 5011.

The judgment is affirmed.

      . The jury found:
      1. That Curvier, Jr., did not recognize and accept August 4, 1965, as the cancellation date for the policy in question.
      2. That notice of the accident of August 28, 1965, was given to Maryland by Curvier, Sr., or someone acting for him.
      3. That such notice was given as soon as practicable after the accident.