*1 De- judge The trial severally liable COMPANY jointly
fendants were and INSURANCE PRUDENTIAL OF AMERICA, Appellant, Plaintiff. for the debt claimed Hauling Livestock has failed Hondo BURKE, Appellee. accept the Accordingly, to file a brief. Barker as appellant facts as set out No. 8844.
correct, findings of fact made adopt and Texas, Appeals of Civil Court thе trial court. Rule T.R.C.P. Texarkana. agreement absence of some Feb. 1981. (seller consignor contrary, only April Rehearing Denied Appellаnt’s freight charge is liable for the goods) 5, 1981. May goods. shipment incurred in an intrastate Part and Motion Granted Appellee’s East Texas Texas & N. O. R. Co. v. Gravel 7, 1981. April in Part Overruled Co., (Tex.Civ.App.— dism’d); Miller Vidor Dallas Atchison, Ry. F.
Lumber Co. T. & S. (Tex.Civ.App. S.W. — Galveston writ); Keeling & Field v. Walter Con (Tex.Civ.App.—
nally & S.W. also, Tex.
Texarkana 2.311(b),
Bus. & Comm.Code §§ bar,
In the case at the defendant Glosson There was no goods.
was the seller of the understanding between the
agreement as to whether or Barker
parties Glosson In that pay hauling charges.
would record, solely
state of the Glosson is liable both Barker charges.
for such Counsel for ad Hauling
and for Hondo Livestock have hauling
vised this that all of the Court
charges paid have been to Hondo Livestock
Hauling the defendant Glosson. appellant point
The first error Therefore, we need
Barker is sustained. por- remaining points.
not reach the
tion of the appellant imposed liability upon REVERSED, is
Barker Hondo Livestock
here RENDERED that nothing in its action
Hauling recover Barker.
against Don *2 Stevens, Russell, Wal- Atchley,
Michael Hlavinka, Texarkana, appellant. drop & Friedman, Hooper, Errol Freidman Texarkana, appellee. against Pru- Burke filed this it re- Company because
dential Insurance life fused ei- petition sought or de- specific performance ther ren- claratory judgment. The declaring that Prudential dered beneficiary in duty had direction, al- with Burke’s accordance lowing has appealed.
fees. Prudential
funds,
except where the
nity
stipulated.
The facts
insured,
during the time Mr. Burke
in which case a
was issued
survives the
Burke,
Dorthy
Jo
and she was
married
portion
the insured’s
later,
beneficiary.
years
named
and com
have been intended
presumed to
They
Mr. and Mrs. Burke were
Brown
the insured’s death.
pleted by
*3
again
remarried and
subsequently
(Tex.1963); Alexander
Lee,
694
371 S.W.2d
divorce decree mentioned the insur-
Neither
Alexander,
(Tex.Civ.App.-
410
275
v.
S.W.2d
ance
months after
the
rule, how
1966,
writ). That
Houston
no
divorce,
directed Pruden-
second
Mr. Burke
from
ever,
the insured
prevent
does not
change
beneficiary
policy
the
tial to
given in the
right
exercising the contractual
Burke, whom he married after
to Melba L.
in
beneficiary. The
change the
policy to
his
divorce from the former Mrs.
second
the contractu
has neither
company
surance
refused, contending that
Burkе. Prudential
change nor the
such a
right
al
to refuse
allowing the
despite
policy provision
the
of the oth
the owner
standing
represent
it cоuld
change
beneficiary,1
insured to
the
such a
prevent
interest
community
er
or should not do so because under Texas
Benefit Life
v. Mutual
changе. Stewart
present beneficiary
law the
has a communi-
(Tex.Civ.
522
257
Insurance
S.W.2d
interest
in the
and in the future
ty
policy
1975,
e.);
n. r.
writ ref’d
Sal
App.-Amarillo
right
proceeds
which cannot be di-
the
Insurance
Life
vato v. Volunteer State
parte
vested
the ex
act of the insured.
(Tex.Civ.App.-
1
424
Company,
S.W.2d
upon
Prudеntial
relies
authorities
1968,
may
The insured
Houston
no
which hold that when a
has a
beneficiary
his
and if he does
change
beneficiary
vested interest
in thе
of an insur
proceeds
his interest
a
of
act constitutes
policy
change
ance
the insured cannot
but it does
beneficiary,
to the new
policy
beneficiary designation.
Tomlinson v.
See
community
beneficiary’s
the first
not affect
Lackey,
chose community in action owned recovеrable, upon in tort or either in actions which matures at the death of the insured. contracts, statute proceeds, paid, when constitute сommu unless authorized whereupon may company, policy it shall take effect 1. “The under this time, beneficiary’s changed any previous upоn proper interest shall cease from time to writ- request, request, op- ten but ... such shall become as of the date only policy erative if the is so endorsed any type monetary was claim Casualty New Amsterdam Co. by contract. Inc., Industries, v. Texas but payment or demand (Tex.1967); Jay Fikes and Associates defendants fulfill their contractual Walton, (Tex.Civ.App.- 578 S.W.2d obligation. Kelly, Jones v. writ n. r. e.); Amarillo 1979 ref’d Whitten (Tex.1981). Alling Cory Company, case, Mr. prayеd In our Burke ref’d). (Tex.Civ.App.-Tyler ob- of Prudential’s contractual performance here contains policy involved ligation provision for thе of such fees. its judgment and the trial court in pro art. Tex.Rev.Civ.Stat. Ann. It un- comply. ordered Prudential many vides for the of such fees in that Mr. made neces- disputed cases, excludes claims types expressly presentment per- his demand for sary *4 against are sub companies required Article 2226. If a fоrmance as ject to of Tex.Ins.Code Ann. provisions perform a to specifically contract 21.21, arts. and 3.62. (Supp.1980) 21.21-2 recovery convey real estate authorizes Article applies 21.21 of Insurance Code under Article there attorney’s fees any or person corpоration engaged such a recov- why to be no reason appears Texas, Jay business of insurance in Free in this suit unless should not be allowed еry F.Supp. man Co. Glens Falls statute excludes be considered it (N.D.Tex.1980); insur yet none of the con- Upon further all insurance contracts. allowing a provisions recovery ance code that, in ex- we have concluded sideration applies fees to this of case. attorney’s tyрe companies of insurance cluding contracts act declaratory judgment Neither does the Insurance Code’s Unfair subject fees, attorney’s allow for the Act, the Unfair Settlement Practices Claims unless are virtue they recoverable Act, Practices And Unfair Competition рrovisions. statutory other contractual Code, pur- of the Insurance Section Zellars, 452 Company Allstate Insurance to exclude 2226 was of Article pose Paso), aff’d on companies against claims those grounds, (Tex.1970); other availa- already fees were attorney’s where Cоrbett, Kelsey v. statutes, as of other ble virtue e.), ap App.-El Paso writ ref’d n. r. specifi- which Article 2226 are in those dism’d, 87 S.Ct.
peal U.S. Supreme In view of cаlly mentions. (1966); 3d L.Ed.2d 34 A.L.R. on 2226 to suits of Article extension Court’s than mon- involving other contracts written of the District Court legislative claims, view etary awarding provision to delete the reformed con- liberally Article 2226 mandate that reformed, Burke. As fees Mr. attorney’s fees strued, attorney’s hold that is affirmed. properly awarded. J.,
BLEIL, participating. not BLEIL, J., participating. REHEARING FOR ON MOTION rehearing we have
On to a
that Mr. Burke was entitled deci very In a recent
sion, ruled that attor Supreme Court Article under
ney’s fees were recoverable
2226, Tex.Rev.Civ.Stat.Ann., in a suit obligation enforce a contractual
specifically there real In that case convey estate.