*1 that a motor scoot- argument Defendant’s meaning of
er is within the an automobile must exclusionary terms of the scooter
therefore overruled. A motor automobile. not an is affirmed. BOUKNIGHT, Appellant,
M. A.
v. LANGDEAU, Receiver, Appellee.
C. H.
No. 10714. Appeals
Court of Civil of Texas.
Austin.
Dec. 1959. Rehearing
On Motions for Feb. 1960. Rehearing
Second Motion for Denied March *2 appellee him just had failed to allow
and,lawful offsets and credits. a nonjury In trial recovered *3 judgment for the amounts sued for and $1,200 as, an additional attorney’s fees. Appellant thirty assignments has four of error the first grouped ten of are briefing. for We will state their substance. Appellant objected introduction by appellee evidence of the following exhibits: (1) appellee’s original petition, (2) appellee’s first original peti- amended tion (trial copy petition), (6) agency of agreement company, between (7) audit of account with com- prepared pany, by or under direction of appellee after commencement of delin- quency proceedings, (11) accounts current purportedly by appellant made for September, months of October and November, 1955, composite (12) exhibit Shropshire, Houston, Schulman & consisting policies purportedly issued appellant. by appellant. These called “daily re- ports.” Rotsch, LeCroix, Cecil C. A. M. Norman Austin, Suarez, appellee.
V. As we appellant’s objection understand appellee’s petitions introduction of HUGHES, Justice. is that attached thereto was the sworn upon account which the suit was based and brought by This suit was the Receiver that this having account been properly de- Guaranty Company, U. S. Trust and it, nied under oath account, the sworn presently аppellee C. Langdeau, against H. probative force. M. Bouknight, doing A. A. business M. Bouknight Agency. Insurance pur- The Conceding that account sworn lost pose suit towas recover its probative value under the circumstances $1,744.35 on insurance it was proper stated nevertheless to offer by appellant under his superseded petition in evidence for the agency contract with the and to purpose showing orig- this suit was $1,963.34 recover the sum unearned com- inally upon “founded sworn account” by appellant, missions on insurance sold in order to attorney’s recover reasonable having such commissions been deducted fees under Art. Vernon’s Ann.Civ.St. premium from the amount of the could, pleading course, The current having collected such sum become un- purpose looked to for being without it this by reason of earned the cancellation of in evidence. the insurance. form perceive action can in the na- no harmful error ture of a sworn account. trial an- before the court caused by denying, oath, under swered mere plead- correctness admission evidence these specially the account and pleading ings. above, 6, 7, described Exhibits sworn denial of the account made sworn properly authenticated under were all audit inadmissible it was ir- and that 11 of 21.28 provisions Art. hearsay. of Section relevant and V.A.T.S., which Code, the Texas Insurance In our admissible audit was reads: independently 21.28, supra, of Sec. books, "(a) Admitted. All Recоrds admissibility and we do determine its records, papers of documents and thereunder. liq- delinquent insurer received Mr. Francis Cunningham, H. Chief of by him in uidator and held the course the Agency Liq- Accounting Section *4 delinquency proceeding's, cer-
of the or uidator’s and Receiver’s Office of U. S. thereof, copies tified under the hand Trust Guaranty Company, and testified for and of the Board official seal and/or quote and we record: from the liquidator, received in shall be evidence proof cor- all cases without of the “Q. Cunningham, Mr. how long without other rectness of the same and you been have the chief that sec- proof, except the certificate of shortly tion? A. year, under a Just liquidator Board that the same sir. and/or custody received from “Q. you just Would tell the Court delinquеnt among insurer or found exactly your duties as of that chief effects. section ? “(b) liquidator Certificates. The me, “Mr. Schulman: if authority shall Excuse Your certify to to please. Honor If any paper, Cunningham’s Mr. the correctness of document supervise office, duty to make the or ac- including record of those his stipulate counts and the like I section, would (a) described in of this to position competent he is in such make and is under certificates seal of qualified. liquidator Board and certified certifying fact to contained in the any right. “The Court: All papers, documents or records of Division; Liquidation and the same LeCroix: Cunningham, “Mr. Mr. shall be received in prior evidence in you the time became chief of originals cases which the divisiоn, your what were duties ? evidence. me, “Mr. Schulman: Excuse Your “(c) Prima-facie Evidence. Such Again, time, in the Honor. interest of original books, records, documents and competent I have he submitted papers, copies thereof, certified or or qualified. any part thereof, when received in evi- prima-facie dence shall be evidence right. “The Court: All thereby.” the facts disclosed Schulman, “Mr. LeCroix: Mr. objection (6) The to Exhibit you stipulating competency as his as (Agency Contract) hearsay was that it was an accountant? signatures and that the parties of the there to had not been authenticated. Schulman: “Mr. Yes. very purpose of the statute was to “Q. (Mr. LeCroix) Mr. Cunning- objections they obviate such were not you ham, arе familiar with the M. A.
well taken. Agency Bouknight account with U. S. Appellant’s objections Guaranty (7) Company Trust & in Re- Exhibit (Audit compiled by ceivership? appellee) Yes, A. were that sir. They November, were of- through to work
“Q. you had occasion Have purpose of show- fered “for the Yes, in evidence sir. A. account? sub- ing current were these accounts an prepared ever “Q. you Have general mitted defendant the books from of that account audit for the business receivership? A. of that and records this offer objection those months.” The Yes, sir. predicate laid or being was that “there objection was relevancy This shown.” Exhibit “Q. you Plaintiff’s I hand in evi- overruled the accounts admitted ac- you examine and ask No. dence. theretо, being Exhibit count attached copy of reproduction or B. Is that accounts were admissible because These - by you?- prepared the audit which they required were as authenticated Yes, sir. A. 21.28, supra. Sec. pre- “Q. audit first was that When n They they also admissible because were ? A. It would pared, you recall do by appellant having been were identified December approximately November *5 prepared by been having his office and as of 1956. by transmitted his the U. S. Guar- office to “Q. Cunningham, generally Mr. anty Company. and Trust to you an occasion speaking, have prepara- since its recheck that audit copies consisting Exhibit (12), Yes, tion? A. sir. showing policies, the evidence or not that when an writes a “Q. you testify whether Can cоpy insured, original or is delivered and correct statement that a true is copy forwarded the in by in the retained and a the records audit as reflected company. possession surance of the Receiver? they actually only copies,
These were may question. “Q. copies, duly un- You answer skeleton were authenticated 11, 21.28, A. Yes sir. Sec. Art. and were admissible der objections evidence over “Q. correct state- a true and policies the best original were evidence Yes, ment? sir.” A. of such matters. Even without this statute apply rule as this the best evidence books and records referred only policies col- below and of insurance were were before the Court witness laterally suit. The con- Concerning involved in this before this Court. records, Cunningham’s or were not Mr. tents terms audit and these testimony pages on di- Section Vol. McCormick issue. covered seventeen Evidence, fifty pages Ray, on cross and Texas Law of Second rect examination and six examination. Edition. qualified Cunning Mr. As a witness Appellant argues that Sec. testify conclu
ham was entitled conflict with Rule 21.28 is in Art. by his audit from an exam sions reflected Procedure Rules of Civil Texas of the books and records ination 3737e, V.A.C.S. company. 526, p. 32 Evidence § C.J.S. on sworn ac- Rule 185 relates to suits (11) generally, Exhibit provides, consisted of ac- accounts counts prima September taken as facie months of on shall be current count sued appears (7). 1. This Exhibit Exhibit record to it as refers
675 under up evidence of account unless denied did not connect the exhibits admit- ted into oath. evidence with the matters con- tained in the sworn account making Art. 3737e business the statute Plaintiff-Appellee to prove has failed records conditions. admissible under stated his required account item item as Appellant Defendant-Appellant law. says that further also this Section position proof takes the legislation al- that in the unconstitutional class his though necessary account it point assignment to for Plain- he has no tiff-Appellee prove up effect. reasonable cost of the charged and that We this stat- see connection between Plaintiff-Appellee’s proof completely ute (Sec. 11) and Rule 185. devoid testimony of such and that Plaintiff-Appellee prove has failed to see no conflict between Sec. part material necessary ac- having but been Art. 3737e if so Section count and proof that failing such he prevail. after enacted Article 3737e would cannot sustain recovery.” complement In our these statutes each other. Insofar as these relate to the ad- mission of the evidence discussed above does not cite constitutional they are repetitious and will not be further provision 11 allegedly which Section vio- noticed. lates and does not otherwise brief
contention. appellant’s points We overrule *6 question presented As this do is not the effect that it was incumbent on duty adjudicate consider it our to the valid- prove premium that the charg ity statute, of should this but rather we were es reasonable. Premium rates presume constitutionality. Vol. Tex. by fixed the Board of Insurance Commis Jur., Section Constitutional Law. illegal sioners and it is not to observe these' Appellant rates. the sold insurance at the Appellant’s points grouped with other rates shown upon the by evidence specifically predicated those discussed are the herein is based. In the ab assumption points on the that such sence of pleading proof we will not separate be sustained and their treatment presume the company charged that or that required. not is appellant sold insurance other at rates than legal rates. through 1 Points 10 are overruled. Appellant groups points briefing next for We also overrule the contention copy appellant’s through 16. We state- that the indebtedness of points:
ment of content of these adequately proved.2 was not This
“Defendant-Appellant says that account was established from books and Plaintiff-Appellee prove has failed records of the wholly and was required his case on sworn as upon account by based contract appel executed Defendant-Appellant reports law. takes the lant and the which he sent to the position company. that the documents admitted no other source of improperly were quite evidence admitted into It information. is true that the au support judgment. not Fur- ditor, and do Cunningham, Mr. testify not did Defendant-Aрpellant po- ther takes the item each upon date account. The testimony sition that the of auditor which each item was based was in the rec subject holding restricting appellant’s liability 2. This statement is our under the facts established. language “Thus the each the Article that of Cunningham testified ord and Mr. item record. the account was verified hy the seems [2226] clearly as it now authorize exists is plain .recovery attorney’s paid if a is fees claim not cross lengthy We note that presentation, thirty days within prin- Cunningham Mr. examination of wholly without reference to wheth- that cipally these records based on er or when suit filed.” that by appellant contention made or, matter that for items the account are appeared In that case demand is, errone- the account of the items of days the sum due was made before four or incorrect. ous suit was filed. through 16 are overruled. Points 11 Appellee’s contention seems to be briefing groups for next timely process suit and filing service of question points all through 26. These statutory requirement that satisfies the attorney’s $1,200 fees. the allowance of “presented payment” claim be period attorney’s thirty days fees before presentment Appellant contends posi- This must could recovered. required not made the account was tion because there is no evidence other authorizes This article Art. V.A.C.S. prove timely making aof demand. attorney’s fees recovery reasonable thirty pаid within if a account not sworn authorities have been furnished No presented to days after it has been ques- parties deciding to aid us in debtor. tion. pay- stipulated that demand filing have concluded that the of suit was made. ment the account sued on equiva process not and the service of stipu- such demand was time of payment presenting a claim lent of Appellee’s complete statement lated. that at meaning within the 2226 and point follows: torney’s improperly allowed. fees were *7 upon authorities Our decision based the points the “Appellee out to Court construing a statute i. e. 3.62 similar Art. 24, Facts, page that Statement on This statute of the Texas Insurance Code. stipulated attorney by the it was provides, part, in that if a loss occurs pay- Appellant that the demand for the company shall fail to the “liable therefor made. Further the ment was days pay thirty after de the same within Ap- petition of that the out the penalties ac therefor” certain shall mand Appel- pellee was filed and served many which There are cases hold crue. 1958, petition January of which lant in required by this statute that the demand copy of tire audit of the ac- included by filing among suit which not satisfied count; that the case tried on was Park, 55 Ins. Co. v. National American 1959, February in over one merits A 1088, writ ref. this Court. S.W.2d later, your year submits holding of the Eastland Court of similar 30-day requirement the the that Na Appeals Rio Grande is found in Civil met, the and under hold- Statute Bailey, 153 Life Ins. v. S.W.2d tional Co. Supreme the the Court of State ing of many 493, to the which cites authorities Texas, attorney’s regard fees in this among Northwestern effect which is same be allowed.” should Sturdevant, Tex.Civ. Assur. Life Co. v. denied, 62, writ 59 S.W. Supreme App. Court case referred to The Appeals of Civil Antonio Court Humphrey, 151 Tex. 254 the San Gateley v. quote: held: from which we There the Court 100. S.W.2d (U. Guaranty) surer S. Trust & not had intention “We think was the payment in- be received require a all the cancelled demand legislature to due, and surance. policy became after the made satisfy the suit, in before a order agency The contract between the demand, putting without valid company provided part: the necessity suing to the
policy holder signifi- demand was the The therefor. agent “The keеp shall accurate rec- company put the act, intended cant policies of all ords issued for the com- pay the it would upon whether election pany report daily writing and shall the demanded, require the or sum policies company. such The to the subject it- therefor, holder sue agent not 10th shall later than the plaintiff penalties if self to the those each month render a statement We judgment recovered for such sum. policies showing detail say demand do not mean to that during previous issued month. suit; on the could not be after made sixty days agent shall not later than contrary, think that the demand from the close of the month in which thereafter, cause might be and a made pay such effective were penalties up by an set action for the premiums thereon, wheth- suit; petition original amended as an premiums er such collected been but, opinion, in our itself suit not, or less commission. in- not such statute demand as “It is a condition agreement of this tended.” rateably that the shall refund company on business heretofore or no distinction between perceive hereafter written commissions on can- required in payment “demand” for Art. liability celled and on reduction 3.62 requirement that Art. premium at the same rate “presented payment.” claim originally
such commissions were re- We are quo- also of the tained.” Gateley tation from Humphrey, supra, v. upon agreement upon clearly recognizes filing pres- suit and provisions particulаrly above of a payment
entation claim for are not appel- and obtained against sued one and the same thing under lant for insurance sold him the which, been collected if col- holding dispenses This with the neces- *8 paid lected been sity company had not to the of deciding other pertaining to portion and the unearned of commis- the attorney’s allowance of fees. cancellation, sions, policy resulting from by premiums appellant withheld in remitting through Points 27 grouped by policies written him. for briefing. By points appellant these con tends that he is entitled to offset the judg is contention here that he by ment obtained in the amount of against an offset the due amount owing or premiums policies return due on cаncelled by withheld him because he extended credit by delinquency the Court in the proceedings persons whom he issued against U. Trust Guaranty S. and Company. insurance to the extent per- that these premium sons are entitled to a return he paid policy If a of insurance is can- subrogated rights. to their then (generally celled the insurer speaking) owes to the insured the return of the un- It should be stated here that premium. simple earned This situation is some of his customers after can- reinsured complicated by here the fact that the in- polices company in the of their cellation premiums claim for other one-half unearned the
procured assignments of return premium being which had never been earned made them, assignments from thesе by company proceed- the the can- because of delinquency after institution of debatable, appel- company never If the had cellation. If, ings.3 is not assign- premium itself from the received the solely on these lant’s claim is based necessary (f agent, then it 21.28, Sec. 3 was Article ments then under premium in order claims collected assigned g) amount of such the policyholder. the it If ap- to return to the the debt of to offset could not be used premium received the had pellant company. agent, the from the insurance subrogation theory the In addition to already his deducted commission contends referred to above premium, year for the full from this liability full not the the company necessary for the so was premiums (less amount the unremitted commission, or of his one-half collect commissions) should earned but is and words, commis- the ‘unearned’ other premiums (less the earned limited to earned sion, to make agent in order from the commissions). premium to complete unearned up the in order policyholder be returned to the question the states to be: full for satisfy policyholder in the unexpired the the him for amount due Liquidator right the “Does have the policy. term his premium to collect the entire for the portion year entire of the insofar as those arise from business attempt to an recover one “This Septem- during the months of S. & the defunct U. Trust asset of ber, October, and December November namely Guaranty Company, an amount Liquidator the the or does company’s books owing shown on only right portion recover the earned by Appellant as of December premiums, pro rata such which is the $3,707.69 plus the amount of period
portion premium of the attorney’s fees court costs. It is from the time coverage which was suit submitted written until cancelled of a defunct insurance com- Receiver order.” court pany all of creditors on behalf of company. It is a suit for Appellee’s question view of is reflect- Appellant’s particular the benefit quotations brief: from his ed these policyholders. Guaranty the U. S. Trust & “When example Appellant's an give “To receivership Company into went effect on other action and its credi- n February there was a certain company, take Mr. M. L. tors of liability existing between the status Kasner, policyholders. one of Mr. policyholders, company and its premi- was due return Kasner $52.73 Appellant, Agent. The company and *9 policy. Had his Mr. Kasner ums on parties can best the various liability of against receivership claim the a put in by following out the illus- brought estate, will assume for the moment tration. upon distribution the assets and creditors would policyholders policyholder had six months “If the 50%, Kasner, Mr. or one-year policy $26.36. received the time his at go on however, cancellation, relegated to the rank was had he a court the by receivership approved assignments court with on these filed claim based A3. $7,347.80. in the sum general by Trust & leсted of a creditor U. him. S. The Court agent held the Guaranty Company, liable and as were the other that he could the not offset a amount policyholders. treated as premiums He was of these agent which the Appellant and preferred by used in the other buying creditor for insurance dollar, his paid customers. agreement one hundred cents on the The between $52.73, Appel- agent the company full claim of when and the in his that case provided assign- the by lant him and took reinsured monies collected agent assign- Appellant company for the by Then ment. took should be held agent by fiduciary in capacity of his offset in a ment means until trans- accomplish company.4 mitted to the attempting to lawsuit ac- Mr. could not what Kаsner himself Clark, v. Wheeler 158, 306 S.W.2d San is, full complish, realize the Antonio Appeals, Court of Civil writ re- Kas- Mr. amount of debt owed. fused, awas case in which the receiver preferred creditor and ner was not an company insurance agent sued an creditor of preferred is not commissions retained but unearned as a Company, Guaranty but U. S. Trust & result of the cancellation policies put himself in the latter seeks and the Court disallowed an offset based on assignment category by means premiums by agent returned to his cus- and offset.” tomers or the cost of procuring other in- support his four cites cases surance, the Court stating that to allow position. each. We will discuss agent such offset make would him a preferred creditor insolvent com- 95, Metteauer, 283 S.W.2d Wheeler v. pany. Appeals. of Civil Galveston Court It is obvious that none of these cases suit of interest This a venue suit brought for funds not in the hands merely agent insurance here held that an of the agent. appear Nor does it duty policyholders repay was under of these cases that agency an contract was pol- premiums unearned on their cancelled which, here, provides involved that the icies. agent pay shall at the time premiums stated by on insurance written Wheeler, 363, v. San Eng S.W.2d premiums him “whether such have been Appeals, Court of Civil writ dis- Antonio collected or not.” missed, awas case the receiver of an company against agent an An agreement merely that an agent was recovery of unearned commissions re- liable to the col- agent, having tained lected him scarcely be worth the attempted agent The required been cancelled. effort write down. Of the against claim the amount importance, set off however, utmost provi- is the premium which he had unearned refunded sion that the liable uncollect- the cost of reinsuring premiums. his customers or ed Court, following Wheeler them. v. agreement Such an was before the Court Metteauer, supra, held the offset unallow- Wandless, v. Waters 35 S.W. able. Appeals. Dallas Court Civil This case Wheeler, v. Arnold 304 S.W.2d was cited followed in E. & Earnest J. Appeals, Word, Antonio Court Civil Company San writ v. 137 Tex. 152 S.W.2d N.R.E., awas case in ref. which the quote re- 325. We from Waters case [35 *10 agent premiums sued an ceiver col- S.W. 185]: agreement company pro- between the and the in case a similar contains vision. premiums, unpaid, appel- As to unearned the insur- appears that further “It pay required for insur- lant be to would to looked Waters company [the ance company not the who premi- ance received to the payment of agent] for the in that mon- to deliver it order failed When the assured. um, to and not ey, collected, a be distributed as so could policy to Wand- the delivered Waters gen- persons (policyholders to and windfall premium collect the
less, to failed and it. creditors) having eral claim no to the insurance liability to thereon, his part became of same company 32-34, Appellant’s points, remaining re- be- also absolute, his bondsmen findings late the fact and conclusions to the insurance came liable to requested of law filed or be made and to Wandless trusted Waters therefor. to ma- filed. Since there are no as conflicts having there- premium, the pay to opinion terial facts we the that a are of in- the the debtor of by himself made discussion these would fruit- therefor, he became surance less. and, subject-matter, the in interested thereby opinion appellee same, It is our that is entitled paid the became having appellant (1) in- to recover from unearned of the rights all the subrogated to premises, (2) commissions the amount of earned company in the surance premiums him in his own and recover to sue entitled policyholder whether collected from name.” premiums all him (3) pri- not collected appellant, agent, opinion Under cancellation and not or to unpaid his customer have sued could company, forwarded less earned what premiums would his but commissions. The consideration recovery been? have our that not It is en- appellant and between agreement for the (1) to recover from partially titled un- It had failed. his customers premiums by him earned not collected from permanently un- failed the extent of policyholder attorney’s (2) fees. Appel- premium. portion of the earned certainly been recovery have would lant’s Appellee concedes that view of cer- pro rata. limited dividends which have been tain allowed appellant upon appellee sues paid when appellant, Now but not that these divi- why they facts should identical state of an dends should be allowed as of the date the amount of the earned recovery exceed were made interest should run only less commission? premium, on the difference between these amounts and amount owes appellant (the policyholder Both the judgment. from the date of the agreed pay aside) have commission As we understand the record it is not partial a fail- there is premium. If full final in condition for us render to the one it seems as consideration ure of not disclose amount of does to the other. should there us that paid policy- unearned Waters, appellant became the held As appellant prior to cancellation of holder to Guaranty Com- Trust U. S. debtor is, 'therefore, policy. This cause re- debtor there availa- As such pany. versed and remanded. defenses of debtor and all the to him ble been the defenses Reversed and remanded. policyholder had he been available Appellee’s Motion for Rehearing On sued. complains ruling of our moment, examine, the im- Let us made under presentment was suit. of this port *11 powered and sell to solicit at- allowance V.A.C.S., authorizing Company, and of said insurance supplement- a has filed torneys’ he fees and provided contract which Re- said containing Officer’s transcript al De- premiums by payment of the delivery of on and service showing turn photo- A Company. fendant to said on appellant petition to appellee’s copy of attached is copy of static said contract January 1958. . part ‘A’ made a hereto as Exhibit remanding reversing and our If order copied full if hereof the same as time- question valid then the this case is por- (Pertinent herein and hereat.” statute this presentment claim under ly previously tions of contract stipu- upon retrial. will not arise copied.) been pay- presentment demand or that lated a suit us, this is Clearly, it seems more than much been made and ment had we special “resting upon contract” transрired since thirty days will have so hold. case when this stipulation was made such will he retried. holding complains also unearned, uncol differing not liable Furthermore, if a rewritten premiums we have lected by the previously rendered from the one requiring portion agency agreement retrial, attor- Trial Court is rendered premiums on pay appellant to appraised in neys’ properly will fees or not.” “collected written him whether en- work judgment and the view of such just obligation Certainly binding a this is securing tailed in it. contractual promissory note other a or promise binding, yet if a consideration however, Finally, we are of promise wholly partially for a fails or a sworn not a suit on promise obligation accordingly or de 2226. meaning within the of Art. account promise pay feated. The for insurance Biskamp, 316 v. quote Meaders from believe, not, does we 75, 78, Supreme Court: S.W.2d Texas promise pay include a for insurance a ac- “It been held that sworn has which the to deliver. failed pop- according count is defined Moore, Struve v. 136 S.W. Court of applies only to transac- ular sense Appeals. Civil See also Hudson v. Com persons, in there which tions between pere, Tex. S.W. purchase upon one side and a a sale per- upon other, title whereby Appellee also contends that property passes from one to sonal pleadings support are insufficient to a de other, debtor and the relation of fense of failure of consideration. thereby general created creditor is may upon The form suit dealing (which include con- course par- purporting tract but between to be in the only one transaction nature open of a suit on account. not mean transactions ties). It does de- nied, answer, in his resting upon special that the parties account between sued “just on was not or true in contract.” whole or in part” he and that had not been allowed peti- appellee’s trial now to Reverting just offsets, payments “all and lawful allegations: tion find these against upon credits the account” suit was based. day the 12th “That on about pleadings Whether these July, the Defendant entered in- authorized defense with said of failure of written contract Com- consideration we to a need whereby Kincaid, In the Defendant was em- decide. Cretien v. pany, Tex. *12 682 Civ.App., 1094, 84 affirmed S.W.2d 130 a code of law providing for regula- 513, 1098, Tex. Tex.Comm. of S.W.2d tion of the business, insurance a business App., it was held that where a cause was affected the public interest. The emer- pleaded upon and theory tried an gency erroneous clause to passed the code in 1951 as rights and the par and liabilities recites that certain “making facts exist adjudicated basis,
ties practicable on that a reversal and necessary that such laws should be ordered. (insurance) clear, concise, shall be made adequate and protection consistent for the We point do: out that affirma- of the insuring рublic well for as as tively pleaded policies a cancellation of protection of engaged those in the insur- by appellant thus, generally and ance business.” least, pleaded at failure of consideration. ap classification
The motion is overruled. praised as reasonable discriminatory the one made the Legislature sep in Motion overruled. arately legislating compa for insurance nies, solvent or insolvent. We have no Appellant’s Amended Motion On upon doubt history matter. The Rehearing classifying companies insurance spe legislative cial (orig- Appellant’s rehearing treatment motion the need such five classification is thirty long too amended) inal contains and too сom plex to be con- noted here supported by a brief but it a is matter knowledge. common discuss We taining pages. We will find no con stitutional succinctly possible, infirmity decide, briefly Sec. 11. as as not heretofore questions presented decided. discussed and Appellant questions the au thority of the Receivership Court cancel stated original In our outstanding insurance. We not agree. do point or brief directed a general As may rule a receiver adopt or 11, Art. unconstitutionality of Sec. breach a principal. contract of his 11-A make 21.28, longer can no We V.A.T.S. Tex.Jur., Corporations, 629, Sec. 36 Tex. Appellant points Art. this statement. Jur., Receivers, Sec. 77. Whether the can 56 and Constitu- Secs. Sec. cellation of рolicies insurance awas breach Ann.St., Texas, and the Vernon’s tion of insurance, the contract of we do not United Fourteenth Amendment decide. doWe hold that the receiver had being Constitution as violated States authority, approval, with the court’s to can this, application passage stat- policies cel such even if the contract were ute. breached. premise Appellant’s main is that Sec. special under local or law enacted
11 is a Since was not party general it “is of a law since guise contracts, of the insurance we decline to applicable liquidator only pass upon receiver — his contention that the order can- such and that an as celling was invalid because of of such individ- it discriminates favor policyholders. lack notice to the against all other who ual and receivers appointed may lawfully under laws appellant’s We also overrule con of Texas.” the State 3(g) tention that Sec. of-Art. 21.28 insofar right it denies the of offset to claims believe view Sec. 11 only purchased part too narrow. small after commencement of delin- *13 company, its not the view forwarded quency with proceedings thereby. liability augmented would not unconstitutional being an offset is used as re- Act To double hold allow caption otherwise would because aof defective covery liability. from quote single We in which contained. it was caption: appellant’s liability for commissions As aр- unpaid, the amend- him but providing “An Act pellant poses In- illustration: the Texas 21.28 of ment of Article 1951, Act con- such surance Code of “ * * * in- if total rehabilitation, liquidation, cerning surance Appellant was $120.00 in- conservation of reorganization, Appellee owed one-fourth surers, under placing same amount, he exactly would owe $30.00. Commissioners; Insurance Board On the other hand if owes phrases defining words certain $90.00, one-fourth of which is the * * * Act; fixing used in this of premium amount involved for the *** parties; rights of interested year, entire he If would owe $22.50. ** * offsets; Ch. providing for he owed the full com- as return $30.00 Leg., Ses- Reg. Acts 54th p. missions less earned commis- $7.50 sion, 1955. sion, he would owe to caption in- It contended sum of as the return. $22.50 Obvious- Con- Texas adequate under Seс. ly this mean that under com- would one putation stitution. he would un- owe $45.00 computation der the other he would provisions opinion that our only owe $22.50.” Insurance 3(g), Sec. Art. 21.28 ex- object fairly within Code are fully not we ap- sure understand caption Act. pressed in the pellant but agree, example, under his the total commission and the $30 requests that our Appellant also $7.50, appellant earned being commission comply. gladly be clarified. We owe would a return commission $22.50. policy the maximum lia- one As points presented Other have been amount of dis- bility posed opinion. paid original our over or premium collected and premium uncollected earned the amount The motion is overruled. greater. part If of an sum is whichever paid but Motion overruled. premium earned