Oakes v. Aetna Casualty & Surety Co.
551 S.W.2d 504
Tex. App.
1977
Check Treatment

*1 504 possession railroad right-of- land 5 years

thru his under a deed. Pebs- 1901Cohen conveyed quitclaim November way. In deed acquired worth from the had been acres which cut off from property Hall 6¼ in 1975. five- railroad land the railroad remainder is not met. year Behringer now owns the 6¼ right-of-way. points and plaintiffs’ All contentions are to Hall. conveyed acres overruled. conveyed Cohen Block “100 In 1905 AFFIRMED. * * sold to 8 acres railroad acres less Hall” to Pebs- acres sold to Miller. about 6 property sold to Miller. owns

worth now abutting to land on a rail

A deed conveys title to the cen right-of-way

road unless right-of-way contrary

ter expressed in instrument.

intention is Fuller, Tex., Ange Tex., 441 Biscamp, S.W.2d 524. lo v. OAKES, Appellant, deed from Cohen to Hall contrary intention expressed. there was CASUALTY & SURETY AETNA CO. trial properly think the court al., Appellees. et “strip gore” doctrine

applied the construction, and title the north 8728. No. right-of- acres of the 7.81 railroad one-half Behringer. is in way tract of Civil Amarillo. point 3 asserts the Plaintiffs’ trial granting erred in 9,May 1977. one-half the 7.81 to the north because there fact issues on strip acre question of limitations. the railroad plead Plaintiffs right-of-way in 1970 and

abandoned possession prem took plaintiffs same, same,

ises, paid used improved property thereby on said has

the taxes exception limitations. No

matured title pleadings, at such same are

being levelled Articles plead limitation under

sufficient 5508, or 5509 VATS. Lewter v.

5507 and NRE, (Waco) County, CCA

Dallas permit 5507 and 5508

Articles possession and adverse peaceable

person title to title or color of mature

under title years. Pebsworth limitation deraigns from the Cohen Miller con

title expressly deed and Pebsworths’

veyance, its “7¾ acres of land

excepts from terms * * right-of- railroad occupied by the 6 n acres conveyed to W.E. way, * requires adverse *.” Article Hall

ROBINSON, Justice. companies failed

Defendant required by Tex.Ins.Code get approval of the for (1951) policy forms art. 5.06 Ann. writing for agent’s clients. Plaintiff insur- alleges that this failure was companies’ agreement of the breach suspension of the the cause his and him damage. consequent The trial license summary judgment for entered appeals. Plaintiff Reversed defendants. and remanded. from a appeal

In an. is not whether the proof raised fact issues summary judgment to essential elements of a with reference action, but whether the established as a matter of proof genuine is no there law that of the essential elements of or more to one cause of action. Gibbs v. (Tex. Corp., 450 S.W.2d 827 Motors General is 1970). proof on the mov- The burden as to the existence of a and all doubts ant material fact are issue of resolved All conflicts in the evidence against and the evidence which disregarded, position support tends accepted motion is as true. opposing Insurance Company, Prudential Farley (Tex.1972); 480 S.W.2d Company Reserve Supply Company, Plumbing San Antonio us, appellee In the case establishing as a matter the burden have summary judgment evidence judg- entitle them to which would facts plaintiff alleges a cause petition, Oakes was a action operator with lease certain automobile lia- solicited He clients. coverage physical damage for bility from Aetna Life and Casu- operators lease McCracken, Smith, Taylor, H. Shields & Casualty Aetna alty McCracken, Carrollton, appellant. agreed provide Company. Surety Bach, Greenberg, and, Robert M. Greenberg pursuant coverage & Haynes, Frank H. employee, Dallas, appellees. ment, Aetna’s a written memorandum describing prepared considering the question we note that coverage to be lease own- alleged implied representation alleges that it is cus- er-operators. legally be issued company writing tomary for an but rather approval, compa- board that the of Texas to assure and business fact, had, applied ny and received forms, policies, verify coverages *3 The approval. alleged misrepresenta- such approved by been the it uses have Insur- of was one fact rather tion than of law. office issuing Commissioner’s cite Armstrong Defendants v. Tidelands coverage; to regard that a contract with Company, 466 Life Insurance S.W.2d 407 Aetna had ap- that secured representation 1971, Christi (Tex.Civ.App. Corpus in implicit forms was proval — Oakes; for their writ) authority contention as that with and that agreement in its Aetna to on secure the plaintiff relied neces- matter entitled as a not secure ap- sary companies rely to to secure of the endorsements of certain as proval the 5.06, Art. Texas required by Insurance Armstrong, citing court in Perkins v. Code, policies. the but issued Because of Lambert, 325 S.W.2d 436 (Tex.Civ.App.— issuance, the policies were improper the 1959, dism’d), writ held that an Austin cancelled; license was Oakes’ revoked for an agent may agreement not enforce months; and Oakes lost five commissions commissions, if he has not complied with and customers. of Insurance Art. Code have not offered summary Defendants part: in provides which to dispute the facts al- not be lawful for any person It shall to Instead they contend leged by plaintiff. State, agent this or other- act within allegations true, even if the wise, soliciting or receiving applica- recovery from because of precluded tiff is * * * tions will not aid rule that a court either a certificate of agreement procuring authority but will first illegal to an leave finds it them. parties where See Cox from the Board. 436, Feedlots, Hope, 498 S.W.2d Inc. v. Armstrong, agent contended that he Antonio writ (Tex.Civ.App.—San company’srepresen- the insurance relied on therein e.), ref’d n. r. and cases cited. it would secure the tation that certificate of correctly state that the issue him. The court authority for held to the court is whether presents itself which impose obliga- the statutes Since between arrangement or not the himself not to act as an tion on the was illegal. the defendants Oakes and procured until he has that an apparent agreement to It is Authority, of Armstrong, in Certificate that have not policies been issue insurance base an action for case cannot dam- this illegal. insurance board is by the approved allegation of fraud since as a ages alleged has not such an agree But law he was not entitled rely matter alleged that he He has entered an alleged promise procure on Tidelands’ policies for the issuance of agreement of Authority. the Certificate were to obtain approval the facts alleged then consider illegality only occurred be and that light holding. us in of that case before failure perform defendants’ cause of Here, obligation which was violated is agreement their under obligation their 5.06, Code, in Art. set out then, is whether Oakes question, had Forms and Endorsements. Policy defendants to secure the rely on right duty approving policy forms and on In addition approval an rates, representation they had done the Board shall implied classifications for each kind so. forms prescribe

5Q7 (Tex.1972), respects except uniform the different plans on judgment as as necessitated a matter entitled of law. oper- kinds insurers various Compa- which the Reserve Insurance thereafter use ate, insurer shall Plumbing Supply Compa- Antonio ny v. San writing automobile in- form in any other Their ny, 391 S.W.2d State; however, provided, in this surance the absence of to establish failure any form of use any may insurer precluded fact of material issues to its pian appropriate endorsement judgment. such endorsement

operation, to and approved submitted first

shall be Board; any contract or application into the not written and of be void no effect and

policy shall *4 provisions of this violation of sub- shall be sufficient cause for

chapter, and of such of license insurer to

revocation insurance within this write automobile PAPERS, INC., Appellant, CENTURY added.) (Italics State. v. places Article PERRINO, Appellee. Charles obligation to submit company endorse ap Board secure Board ments to the No. 8409. their use. them before There is proval of Civil for the to secure such provision Texarkana. Thus, in Armstrong the cause before does not control us. May have failed to sustain establish by summary judg their burden not have rely on the defendants to secure

right to Likewise, they have that there is no fact

failed to establish issue element of

on some other cause

of action. trial court granting is reversed and the

cause remanded.

REYNOLDS, Justice, concurring. the reversal and remand.

I concur in moving judgment, companies assumed

defendant showing law, as a matter of

burden of not recover pleaded Smith, Gaddis S.W.2d

allegations. To discharge this

577, 582 bur-

den, establish that they were to at

there is essential elements of one of the

least action, “Moore” Burger, Inc.

tiff’s Petroleum Phillips