Shippers' Compress Co. v. Northern Assur. Co.

Tex.) SHIPPERS’ COMPRESS CO. CO. v. NORTHERN ASSUR. 939 definitely Myrick argument improper tell trial I Mr. there. because of the wanted why there, I out went part was appellee. what there. ine the The re- counsel steps any to exam- further didn’t take I complained appellee’s part marks of on the guard automobile, there. as was this were, substantially, although counsel age suppose had a and time he don’t in this I contributory negligence part ap- gun or not he was As whether with him. pellee, upon by as relied would well, simply intimidating me, me that he told recovery by him, defeat if to exist found railroad, representing and the he was jury, yet any that car. it the view let one touch of counsel for road said not I Mrs. plaintiff told him was I respect After he said Myrick and, that the law in this was un- course, keep me he couldn’t unjust suffering damages parties — fair and looking said, car, ‘Don’t he at but injuries or expression of this cases character. To anything both ear.’ That was on this touch before and after by plaintiff’s of views counsel I was Mrs. told him that appellant excepted time, at shown as. put Myrick. said, the rail- ‘I am here He record; by its bill in record does touch this cannot let road ” any request not disclose that was made of car.’ judge jury the trial to instruct to disre- automobile was further shown gard these remarks. expert, Appleman, dealer and B. K. that he improper [9] While we think that it was car, and, appellee’s among was familiar with jury appellee for counsel to the for- to state things, other this witness testified what his views as to the fair the time market value the car contributory law relative to the defense of The the collision was about witness $300. negligence, do not think these still we further testified: inflammatory remarks character were of that you “Now, out and she was taken . unless nature that warrant court would price piece paper, got list took on reversing judgment thereof, on account you part, parts, broken couldn’t each assignment. and we overrule the However, get an estimate of it. accurate disposes assignments appel- This it, as I leave it—if he condition saw would brief, and, opinion lant’s replace buy parts it, there wouldn’t those point error, none of them reversible parts anything left. fact is that be they ,are overruled, buy piecemeal you you have to will cost thé present parts affirmed, much more than would trial court and it will be so ordered. you put wrecked, it condition it if together shape running be- same you anything fore, left.” wouldn’t the court C 136 S. W. proposition inclined to think that sustained. be W. 927.W. we are inclined to think that market value of urgent request In its value mitted to examine the ascertaining age done quired ; the effect that charge that definiteness fore Wells the market automobile By [8] We concede that the ^[7] held to strict the record o. the tenth The true measure of Fargo view of the absence of of the automobile and refused the but under v. car, immediately erred Cox, was, condition value & Co. or how much the extent Ry. 34 assignment, showing appellee automobile is not 56 Tex. Civ. appellant and exact L. of the car appellee’s Co. v. Express refusing course, car after its A.R. undisputed after the appellee ought car, on this what Day, extent damages immediately it is claimed that (N. S.) 111; v. ordinarily App. proof wife immediately any testimony injury, Keeler, appellant 104 Tex. grant point left difference in injury the counter shown of ttie dam injury, evidence to as to the damage, view to we are should a new not to 120 S. 173 he to it Pullmanpanies took per and company had be re S; Insubance 3. ry which there will discretion lieu where the pressed ly companies, stitute 1. different (Court SHIPPERS’ 2. Duty op Broker. —Substitution ments Appeal to a grouped. Instjkanoe A Where one Jan. An supported by evidence, of a general agent owes the certain matter held of Civil assignment risk, his wish to ERN ASSUR. CO. legal propositions, binder in another insurance op binder in one insurance insured had and. Error. 1919. On securing been ing, COMPRESS CO. v. <§=>129 desiring erred Appeals <§=>132 naming duty, Error Feb. selected. op that the court’s for several insurance com- furnish insurance about general agent Insubebs. was authorized to sub- question. to one —Insurance 12, 1919.) Motion —Insurance tornado insurance ex- of Texas. Beaumont. been <§=>742(2) to deal with and an conclusion of law (No. 340.) applying to be that will car- Rehear- finding Brokers— — for several assignment to use his improper- NORTH company, Brokers Assign- * entirely for in- topic Key-Numbered Digests oases see other same <§=>For KEY-NUMBER in all and Indexes April by Supreme Court denied error *Writ (Tex. REPORTER 208 SOUTHWESTERN 940 Usages damages sustained, liability and denied for <§=12(2) and 4. Customs —Knowl- edge delivered, loss; of Insured. had been no applied desiring plaintiff ready pay premium. to a Where one was general agent insurance, for a number of by for general Defendant answered demurrer naming any he was by general alleged, among denial, and oth- and chargeable to the one company placing for another without sured. of a with things, in er that it had not at time named that, made in a binder was effect any prior plaintiff’s petition, nor time there- at the name of no notice of any to, applied permit or au- for or received insured, given was thority proper officer of the from the state could substitute one the binder engage communicating in the business Texas to the in- insurance; li- no it obtained permit of Texas from the state cense or Agent Principal Apparent <§=99 5. — matters; any Authority Basis—Estoppel. & for it in such Scope Rice Belk to act oe — policies forms for or contract it had no that engaging authority scope theory apparent in business, any fur- upon such and had agency in es- the rule of the law of based that, principal toppel, led the policies has forms to said where a no or contract to the effect nished au- believe that acting other to for it in the tornado & Belk for Rice say thority act, principal cannot later such authorized or em- had never that such rule is based was without powered act for it or said Rice Belk to & upon equity. any making is- or it in 'such business bind Principal Agent <§=119(1) Appar- any policies, suing all want of of which — Authority oe Proof. plaintiff —Burden authority ent well known both to was against principal, was, In action ac- where Belk; and said Rice that defendant & exist, up- authority the burder! is tual on apparent does petition plaintiff’s named in at the time bring plaintiff himself within rule prior thereto, engaged in the fire insurance authority. issuing business, making in contracts Appeal prop- <§='1071(2) parties against fire to Error loss favor erty —Harm- and, Texas, less oe Law. Error —Conclusions & that Rice in the state of against principal, the of the In an action where agents Houston, Tex., its at Belk were question upon evidence agent to make thorized against contracts undisputed, of the court the failure by fire; no loss defendant had upon question law to file his conclusion of premium arranged or for tornado bus- fixed authority was not reversible error. customary iness, and there was usual or defendant; in effect rate the ity force or Court, County; Appeal from District Harris power Rice & Belk had no or author- Masterson, Judge. Wm. to act for or bind this defendant in Compress Shippers’ Suit loss, matter connected with Company. against making whether or con- plaintiff: Judgment inspecting premises therefor, tracts or or appeals. Affirmed. adjusting any losses, they, nor did or them, any power either of Franklin, appellant. Houston, or R. W. Harris, Knight, bind Thompson, this defendant Baker manner & plaintiff’s nected petition, Dallas, appellee. matters set plaintiff all of which was to the well known; Compress information BROOKE, defendant al- J. Com- leges August 16, 1915, some time on plaintiff below, alleged petition, pany, in its plaintiff procure, did .through undertake to effect, making defendant and the in plaintiff Rice tornadoes, insurance of some kind of tornado of a contract insur- ’phoned that end covering Rice $20,000, the cotton sheds ance for $20,000 Belk and asked that worth of compress property on situated .of granted plaintiff upon favor of the Houston, from 12 o’clock noon in the August property, alleged some which is to be other 16, 1915, o’clock noon of 12 property and different August described in 1916; August on about plaintiff’s petition; that at said time Rice had been taken after stich represent Belk did defendant the mat- (cid:127)out, struck the or windstorm a tornado sheds insuring against tornadoes, ter of and de- damaged them to the amount mentioned and engaged fendant was not such business given $4,300; due notice to its (cid:127)of was known to loss, agents the state that such plaintiff plaintiff; not advise spected instructed the the loss and damages repair plaintiff and send the bill its insurance defendant; defendant; during that, in accordance with such that some time with day telegram August instructions, damage sent caused such defendant, offering $4,300, repaired & Belk to the a cost of at (cid:127)be plain- demand, pay $20,000 failed, insurance on the line of (cid:127)defendant topic Digests Key-Numbered @=For and Indexes see same eases otter KEY-NUMBERin Tex.) COMPRESS CO. v. NORTHERN ASSUR. CO. SHIPPERS’ ' property, telegram not been advised notified that its did not reach tiff’s day, any particular succeeding defendant until ’phoned companies; property 1915, long plaintiff’s the time damaged; receipt telegram, of a num- Rice & were the of this n defendant, companies. By supplemental any damage ignorance answer ber had of risk; alleged occurred, declining not & Belk did it defendant that Rice wired place representative insurance for said has a in this state named Newt have to Smith, plaintiff Smith, protection with the defendant time set of M. but that at the said following plaintiff’s petition at all times and out and authorizing city thereto, any power prevailing prior Houston in the or au- was without carrying thority approve any instructions in- such contract of to and petition, asking plaintiff’s plaintiff insurance and as set out in surance the granted plaintiff’s power make from and or create either did n defendant Texas, plaintiff’s with the behalf to act for on or the state favor a contract ratifying, Company, making, au- in the Union Assurance the defendant Commercial duly insurance, approving thorizing, authorized of tornado Rice & Belk were or which said ratify agents; ap- -& said Rice or and was without to and constituted thereby, any thereby, prove tract; to re- or such and intended the issuance Belk did any wholly attempt entirely from to so defendant that said Smith not did lieve and therewith, contract, but, any ratify approve and on connection such or or embarrassment sought contrary, any attempted to be made expressly contract notified and plaintiff’s they behalf. defendant said Rice Belk that were without au- with court with- thority tried before bind Northern Assurance Com- The case was to against jury, any insuring of the evi- pany at conclusion contract loss out a and following by cyclone, tornado, damage and conclusions or windstorm dence the Texas, the court: that said Northern filed the state of and were Company Assurance thority, without such au- “Findings of Fact. Smith, as such and prior “(1) K. E. Company, On and to was without secretary and treasurer of Womack was the .authority any ratify to authorize or such con- Compress Company Shippers’ and had the tract, agreement, policy, and further no- charge. company in his matters of said surance they Belk, &Rice in so far as tified said had August 16, 1915, “(2) K. In the forenoon steps pláee any undertake to taken to said telephoned the office Rice E. Womack Belk, Company, telephone risk connection and secured $20,000 Belk, place they acts, and, they Craig to and asked them must their if C. undo ‘sheds’of n desired insurance on the tornado against protect plaintiff loss to year. Compress for one tornado, windstorm, cyclones, it must be Shippers’ Compress had five “I find that in some other insurance A, C, E, sheds, B, D, open the and and numbered engaged to conduct such business and thorized Map. press Insurance room on Sanborn prosecution of such and that Craig familiar with said C. construction, sheds, and knew that same could not and would not carried their knew location building defendant, marked ‘Press prior and such notice was to C, D, shed, open was an sheds Room’ and the ‘Press Room’ shed any plaintiff’s property; loss on that follow- practically one made Smith, this notice from the said Newt M. connected, shed, surrounded on throe Belk, having Rice & theretofore taken compress building, I find it was sides the any steps defendant, to bind the undertook parties said both to insure sheds intention of place place insurance, said did as was A, B, C, D, E, in the sum the ‘Press Room’ (cid:127)ordered, $20,000 Commercial Union Insur- tornado. loss Craig composed corporation Belk, Company, engaged “(3) Rice firm in the predeces- Rice, and their and David Houston, C. business state of years sors, ern Assurance ance in Houston of the North- been for 30 had elsewhere; Texas, that Rice & Belk were Company for fire insur- duly empowered agents its authorized and vicinity. n makecontracts on its behalf, having all the August 16, “(4) Rice & Belk That on necessary supplies pur- for' forms and agents of the Commercial As- were pose; Belk had notified Company and the Delaware Underwrit- attempt Company, had or and were authorized Insurance ers’ long prior defendant, any for their tornado insurance account. bind to write During August, 1915, “(5) the month of damage prop- notice of from the storm the permit n erty had Northern said Belk undertook of insurance the state the commissioner from of Texas Belk insurance, and did line said insurance, fire and Rice & to write placed, if same was ever in said Commercial from state commission as defend- had a Union Assurance and notified said fire insurance. to write ant’s company by placing prior wire of such November, 1915, “(6) Prior to injury damage plaintiff’s peti- any set out in did not have tion; permit until after commissioner the storm from the (Tex. REPORTER 208 SOUTHWESTERN city insurance, of Houston of all insurance to write their letters tornado of Texas to write the state by. date, prohibited, company, prior risks writ- nor ten the insur- insurance, instructions and had such com- tornado nor date, cov- prior ance ered until pany, tornado to consider said written opportunity supplies, policies, and had making contracts, notify same. to cancel the or other forms for August 16, 1915, “(13) it was custom' issued On commission & Belk nor did Rice n companies companies authorizing of Houston to write of insurance commissioner supplies com- the insurance insurance for said before them write pany. agent. by the received August 16, 1915, “(14) August 16, “(7) As- On the forenoon Shippers’ Compress Womack, B. authorized K. Company, surance charter a having Craig called C. secured write about from, Belk, telephone, having 1915, permit 1,. on notified the & November $20,000 to write that he wished tornado of insurance Texas him commissioner Shippers’ year of the of Texas. one on sheds Com- in the state for tornado Company, replied prop- 1915, press August 4, “(8) Northern Assur- Mr. Belk erty Company from noon covered 12 o’clock Rice & Belk the follow- would be mailed possi- day $20,000 letter, and that as soon as in due for was received circular which August 16, policy. prior mail he would to 1915: ble of mail course Womack, E. as an individual or “Neither K. “ Company, Ltd. Assurance ‘Northern Shippers’ Compress representative for the as “ August, York, 4th ‘New Shippers’ Compress Company, plaintiff, nor the “ Company, prior to ever of the the storm had Insurance. ‘Tornado Windstorm existence of “ Agents: ‘To Our Company, and did not have “ writing up take have concluded to ‘We 16th, August making any contemplation, in contract anee, on will not Our methods tornado insurance. company tornado insux-- with said for essentially vary those of other well-man- company knowing his in he not what aged companies now that are that class placed, he, nor had or either would be We shall write tornado of insurance. prior them, deal of ings ever the storm had open are on on structures nor surance standing grain Company the Northern Assurance with crops. In the seacoast coun- insurance, & Rice Belk as about with keep away some distance from ties we shall sea borders. prior to on and that date did have but undoubtedly limits will Our policies in the Assur Commercial Union fire ance acceptable do to our who this class property, Company same on this object of this initial communica- business. The agents. & Belk written you give inquire can us some tion is to tornado structures whether “(15) In the usual custom accordance with good class of substantial business on charge premiums Rice the Belk were you sup- like and would us send 'Compress Shippers’ Company and to render plies. month, at the 1st of the therefor bill which that this was the “ response interest, ‘Awaiting your with much premiums paid, time such would be very truly, I am Yours “ manner in the insurance which ‘George Babb, Manager.’ W. &Rice Belk had been of the with agent Smith, “(9) Capt. the state the came into the paid by for, paid the amount to be and that Northern office of Rice amount was the which Belk August prior & Belk charge for the said would the rate August 4, 1915, and discussed tornado after companies engaged charged by generally, at which time he with on in the state that date business the tornado the Southeastern Tornado rate sheets of him Insurance approximately the to wit: 40 cents Bureau. pol- per icy has demanded its That $100. August “(10) on the universal custom It was premium charged by pay and offered to city 1915, 16, in the business &Rice Belk.. throughout Texas) (and stare of Houston of for the of the “(16) with After the conversation Womack agent not to tell the assured the name phone, Rice Belk determined over said insurance in which would place in the Northern Assurance same placed, would select the sending attempted do company in the insurance. which telegram: following company the August 16, 1915, prior “(11) on It was “ Texas, ‘Houston, 8—16—15. date, the universal cus- and since thereto “ Co., Ltd., York, New Assurance' ‘Northern throughout city tom, Houston and supplies per letter fourth Send Y.:N. of not that when the insurance state to-day twenty Binding thousand tornado. inst. issued insurance and press Shippers’ fifteen hundred schedule Belk name the assured had not Rice & Belk.’ furniture. —which . plac- company in his insurance had been telegram not received de- although ed, same, binder he had morning, August 17th, the next fendant was authorized to and telegram following sent to Rice when the said insurance in that substitute insurance & Belk defendant: company that other he desired Aug. 17, York, “‘P. New S. in, and that when to done same “ Houston, policy, Texas: Please im- did not issue the first ‘Rice company’s policy mediately tornado binders was the cancel the second insuring property. press; undesirable. “ August 16, 1915, “(12) ‘The Northern Ass’n Co.’ on the custom Tes.) CO. NORTHERN COMPRESS v. ASSUR. CO. SHIPPERS’ “(19a) August 16, finds that Rice & Belk and “I on find that Craig following loss, defendant: Belk had no letter sent otherwise, any liability waiver or “ to create ‘Aug. 16th, 1915. the Northern Assurance “ York, Co., Ltd., New ‘Northern the tornado loss. telegram Confirming our Y.—Gentlemen: N. “(19b) find, further, that after (cid:127)date as follows: loss, the Commercial Union Assurance Com- “ ‘ supplies per letter fourth “Send tornado pany, Limited, agreement made an Ship- to-day $20,000.00 Binding (cid:127) inst. Shippers’ Compress Company, plaintiff, $1,500 pers’ press furniture.” schedule Shippers’ Compress Company should sue the “ you kindly us torna- send ‘We will ask recover supplies your letter. in the line do loss, th’e Commercial Union Assurance “ awaiting Northern, binding in the are ‘We Company, Limited, recognize liability n supplies, $20,000 on the schedule Shippers’ Compress Company Shippers’ Compress, east side situated on Shippers’ Compress amount of the claim if the Compress street, Hill the Old Cleveland on were unable from the North- collect n map. p. 12, site, Houston volume Company. ern Assurance “ binding $1,200 on furniture are also ‘We morning “(20) On the shingle two-story roof frame contained about 3 a. m. a o’clock tornado hit the street, dwelling, Milam located at 2802 Houston, severely injured shed and D C supplies received. are issued as soon to be press Shippers’ Compress, room of the “ truly.’ ‘Yours thereon, including the tornado loss August the Northern “And on As- slight damages (cid:127) is, A and to B—that the cost following Company the letter to sent to the be- .same same condition as ' - & Belk: Rice “ $1,300, the I .fore storm—was sum to which find the be the amount of reasonable value of work Company, I/td,, the done Assurance ‘The Northern damage plain- sustained the London. August “ tiff. That on 18th Belk said went York, August 17th, 1915. ‘New compress inspected said Womack to the “ Belk, Agents, Houston, ‘Messrs. Rice property, said said directed the Womack beg to confirm our tele- We Texas—Gentlemen: gram damages repaired to have said and to him send reading: date of even the did not That he stated bill. at said time - that « <“piease immediately binders, cancel tornado company responsible, know-which -Shippers’ press; undesirable.” plaintiff that binders in but panies. the had both com- “ your Although appreciate interests we kindly you behalf, must ask that refrain we our “I find the value sheds to of said have been liability accepting any we from approximately $30,000. prohibited your placed hands list our have with “(21) defendant all times denied has at present we are of instructions. At letter liability policy under said and has refused to receipt policies, and therefore not policy. deliver the you sup- the tornado to forward are unable “(22) requested I have been both counsel plies. and defendant find whether or to “ attention, ‘Thanking you your kind Craig Belk, or or M. not Rice & N. C. ,are very truly, Yours Smith, authority agent, state had “ n Lane, Superintendent.’ Agency ‘[Signed] J. O. agents Company tlie Assurance Northern Craig Belk took the binder, binding policy, that said C. “I find a it a tornado .issue - customary steps necessary necessary ‘to bind’ usual the said I deem it and as do not decision (cid:127) expressly insurance in Northern Assurance in this I to find on that case decline n Company, been taken which could have before fact. issued, policy far in so as he itself was . the “Conclusions of Law. authority legal to do so. . had deciding “In this ease I that took view evening “(17) 6 or 6:30 That about general cer- Rice & Belk were tain Capt. Smith, (cid:127) August state ' to secure for them telephoned Assurance Northern the Craig ' policies the same time that at asked him to cancel Belk C. special agents they their customers were it to some other toor transfer binder represented purposes, that, when a client for certain (cid:127) stating him, he did that not procure phoned customer to them to valid or surance, authority to write that Belk had think insurance, kind, became to a that stated he would do. which Belk person telephon- limited extent telephone message Upon receipt “(18) of this procured. ing until valid insurance Smith, Capt. Belk sent to the said Com- from ques- it “It seems to me became Limited, Assurance n mercial ' mind as in his to whether not the tionable following telegram: had secure that Belk tried to for his “ ‘Binding twenty to-day thousand tornado not, under such au- valid or customer Compress Shippers’ Belk fifteen hundred fur- have, thority then as well as under he would niture.’ out, have set the custom I day following he received the the next “And change in a risk about n telegram: answer question. no there could “ Shippers’ Compress ten ‘Reduce set in the conclusions the custom “Under n you escape Hope Galveston change blow.’ regard thousand. or the to substitution fact in notify another, “(19) one did-not from That Rice the of the binder &.Belk right Craig of the Northern Assurance Belk had York office C. New change Company canceled said the binder Assurance Compa- Company to the Commercial Assurance .ance. (Tex. 208 SOUTHWESTERN REPORTER properly they Company.” pany which there would be briefed, question in different sider them complaint of insurance pany. tornado insurance with had the Company That phoning Company, and that ther, the custom set out say that, were or were not authorized questions entirely binder from ond the cline desired insurance for that ny, plaintiff Rice ity Northern know Northern testimony was: the ance in I tion Nothing Company tornado sary not know 000 tornado insurance as to what and ed appears Mr. defendant. Shippers’ Compress “X “I Dealing In our ^[1] find for From Upon regard Craig law, conclusion of evidence; time, as the and did expected assignments ought “So have been & Belk or Belk Complaint made E.W. the court’s that Rice I did not ask find on these policy, them to and without and defendant was said legal grouped, right C. until after far as judgment, about the Commercial to issue a was not did not have aside Assurance decision Assurance is made Wtamack, that in the manner the loss the Northern agreed not to from the Northern Assurance Womack, secretary Belk and asked company it the them to the Northern Assurance Com propositions. However, findings & in the forenoon and defendant. and change there Compress Oraig requested is Belk, substitution law to the effect that under place & Belk finding between Womack and of error as in this case know liable. was rendered (2) be cpnsidered. in the conclusions of fact first company. He left these fact.” binder, these the Northern Assurance of fact above grant assignments bang Company. He the going this C. Belk of fact I he waiving valid insurance. any further conversa- give on the sheds do not I never had assignment should in question;” loss. Company, telephon- find expected agent, deal in me insurance about fact, a him to binding the first and sec further company both of binders Belk which and conclusions finding had the author- whether court erred write for one agents and treasurer Company, and deem it follows: supported by or Womack did we expressly representing and in favor change counsel Assurance place $20,- insurance. set Assurance that them fact it will no insur- into and fur- entirely in tele- we will named out, or not error, policy neces- Com- year. they fact and His are the im- my in, de- (1) in it a binder versal dence. other same name making authorized surance surance, the surance under the assured was not advised of company universal custom thorized of owner, authorized which the quested by Northern Assurance in office tain amount of agent such company selection of the hazard senting improper was ance, there appropriate unambiguous is not the existing throughout support court is plaintiff, peculiar pany been known to the and conclusion as to the many tom as written in the state of provisions alleged the binder in the On the use, property another issue finding transaction occurred the usual had been cannot any. executory company, makes a memorandum of in, company trial implied propositions he and thereafter supported such circumstances and no such custom agent business several them; custom was to make first custom it was not for the and for the reason that will for the in contrary, use contract was of a a and to bind no and be invoked to where binder supported by owner substitution; had not advised averments property erroneous, terms of company selected;' placed, although place prior in this amply supported by and did substitute for said pleadings upon the in insurance, provisions that he desired is agreement policy that where an of defendant agent to the effect that existing in the company the to substitute insurance, chargeable to the company Texas the usual and not issued a urged, plaintiff; is agent the insurance and thereto, the evidence. oral the the state of Texas. substitution, knowledge territory, the owner in and that the for a because alleged urged that, property finding contract substitutes Texas; that the first contract; was made the vary custom that the tornado insurance binding upon agent which could the the it and shown such custom to question of evidence; covering policy as a local properly raise which to when was the one and since agent pleadings name agent custom were place the there place assured the of the trial company in be enforced: in his own left effect his insur- customary owner for insur- There plain pleadings company property the evi- name of and if there contain- to have another in finding is where before are no of a cer- Is re- repre- a cus- Com- is that uni- base like an- the the the the are the the in- in- in- is (cid:127) Tex.) 94& CO.v. COMPRESS NORTHERN CO. ASSUR. SHIPPERS’ Houston, agents say may Rice Belk were the local at tbe outset It be well to justifies Tex., Company opinion for the Northern Assurance that the evidence are the ease, purpose writing for the fire insurance in this rendered evidence, only, undertaking and were not that com- to set out pany writing very voluminous, purpose he sufficient it will which is surance, company say gone record and authorized to write insurance had' over time to carefully, that we the conclusion not been and have reached respect. department state of Texas error that there was no finding conclusion, banking, to ance re- the court and Belk had .Rice the custom Belk ceived no either from that under certificate effect right change Northern the binder from the or from the commissioner of Union, banking required by the conversation law. to the Commercial between the agent, Belk, appears August 4, further that on Smith, circular, the state Rice between Belk had received a ad- conversation in fire and the local dressed to the As- of the Northern telegram Company Texas, Belk surance between substance stat- contemplating ing and the Northern writing telegram Belk and the Commer the between tornado business the state Texas, showing indicating Company of would not cial Union Insurance open write insurance on struc- the conversation that at the time of writing tures, they began not au department away keep thorized of insurance of business some intended to banking to transact a tornado insurance distance from the sea borders. This circu- Texas, that nei business the state inquired lar whether the would be Smith, Belk, '& M. ther Newt any nor position business, give good else,’ any certificate of author held tor- like to have the send ity from either defendant or from the com 1915, shortly supplies. August 16, nado banking missioner of insurance and authoriz Mr. after the conference between Womack ing of tornado Mr. Mr. Belk made a memorandum’ showing state of and further that at might office, his be referred to conversation, the time of binder, indicating that he selected any sup did not have pur- for the plies policies, daily reports, pose quested pened carrying writ re-- the tornado insurance of tornado the defend However, hap- Mr. Womack. ant had not Rice Belk authorized to bind Smith, M. Mr. the state Newt business, it on tornado agent Company, and had not furnished for the Northern Assurance any supplies them Belk, for the tornado busi Mr. called at- the Mr. and when officeof just ness. It will be given sufficient to refer to the Belk him that had the he following Co., Company $20,000 authorities: Ikeller v. Insurance Northern Assurance Rep. 136, Supp. 323; 24 Mise. compliment him, 53 Y.N. tornado insurance as a Office, 545, ICarelsen v. Sun substance, Eire 122 N. replied X. 25 Mr. in Smith 921; Insurance, pp. N. E. do, Ostrander on 52- not Belk nor would as neither Smith 54; (3d p. 389; Ed.) Richards on Insurance were authorized to write tornado insurance Eipman Niagara Co., v. Insurance 121 X.N. Company; in the Northern Assurance 454, 699, 24 N. E. L.8 R. A. 719. company begun writing had not the There seems to have been a cus- such insurance business. At that time Mr. existing Houston, Tex., tom in in represented the insur- Belk also the Commercial Union ance long to the effect that so as Assurance and the Un- Delaware slip the risk rests on a derwriters’, binder authorized, transfer it and was on behalf from one to another company without companies, commu- of those to write fire and tornado nicating provided assured, the name insurance. After the conversation between Belk, company given of the first Mr. Smith Mr. Mr. Belk Mr. insurance told is not assured, Smith that he would relieve the Northern to the and it seems that this custom place every the risk with the Commercial exists in office in the insurance busi- Company. day court, ness. From the 16th conclusions of the trial day decisions, August, which seem to be borne out the same Belk, case, and as borne out the evidence in Mr. versation between Womack and Mr. Womack, representative it seems that Mr. a binder in the Commercial Mr. Belk issued Union Assurance Shippers’ Compress Company, $20,000, of the plaintiff, telephoned Belk, to Mr. firm of the afternoon wired to the on that Commercial Belk, placed of Rice & insurance and re- the effect that he had Union to quested place $20,000 afternoon, them to worth of tor- it. Earlier in insurance with Ship- nado sheds of the Mr. Belk made a memorandum of pers’ Compress Company period Northern, for the in reference he sent binder year, company right.” but that no named. a the home officeof Northern As- wire to replied, advising Mr. Belk “All At that time had surance he 208S.W.—60 REPORTER 208 SOUTHWESTERN iTex.

946 specif supplies. or to make substitution. That court requesting a bound the Northern agent ically or broker holds that such telegram received This after pur property property, for the damage the pose owner of the to the loss and securing an An Northern, insurance. procuring day purpose loss, other certainly 17th wired notice of may that he August, 1017, has some discretion follows: selecting properly com exercise immediately binder cancel tornado “Please carrying pany purpose insurance. Compress; undesirable.” employed present Belk was In the Mr. case written date a letter was And on the same in procure valid Company to 'from the employment coinpany. he some made he would After confirming tele- this that Messrs. Rice indicating that a notation in his office requesting gram, and further give policy to the Northern As- ' agents— n Shortly thereafter, Company. accepting “kindly lia- refrain from tornado action before the assured was advised your bility prohibitive present in our hands company, we part he on his received information to Northern Assurance ing selection of At with letter instructions. list the effect receipt policies, of the are not we not writ- you the are unable to forward and therefore never before tornado insurance. He had supplies.” company. He issued a had minds, [2, appears, therefore, supplies 3] to our state forms from and the that, proper superior, construction clear ad- of that vised who was his employment plaintiff to of Belk company him was not authorized, as such he was no one author- insurance —that placing agent, his to exercise discretion of business. ized to bind it The action such class in some authorized placing Mr. another plaintiff had as the write the Union Assurance binder the Commercial selected, any company he not been advised Company, writing that had authorized substitute a binder was authorized to Tesas, of tornado business Company in Union Assurance 'Commercial lieu of his Assurance supplies with its had Mr. Belk who and furnished attempted binder in the policy forms, ^Northern for the benefit an act there would plaintiff, of the and in furtherance question validity insur no ance. To our minds and as to the employment. made the sub- If Belk he stitution, fhe be held that it should say may was his further 'we Company had representative (cid:127)duty, plaintiff for as the policy of thorized Mr. Belk to issue placing insurance, purpose his use tó think, loss, insuring against securing that would discretion Duncan, under the Diamond v. of- risk, carry employer, and furnish to his Tex. 177 S. W. 172 S. W. plaintiff, insurance about which there legally liable Mr. would have been question. be-no (cid:127) reason The rule is laid down in the case of East complied employment to not insurance with his Blum, Texas Fire Insurance Co. v. Tex. 76 plaintiff. the for S. W. to the 13 effect that the au opinion [4] We of that under are law the employed thority procure aof broker in to substituting Mr. Belk in the action the of principal, for his surance such broker not be Commercial Union Northern was agent general manage to in and authority, regardless any within his of course principal’s property, surance on his termi dealing- or in the of insurance busi procurement nates with the of the insurance. ; ness but transactions there existed fact that at the time of these the Supreme It case in is stated the Court of Hous in that it cannot reason con be held to ton, and custom to the procured tinue after the insurance has been effect that a binder was made notice of the name the-policy prin has been to the delivered the and no of procure Agents cipal. no to contract have .company given assured, to the the was discharge implied power origi it If from the to agent placing the the binder learned that carry merely. possesses pow power he nal er, authority superadded risk, any the or for apparent from some actual it arises or wise, other reason deemed it one could power substitute to the mere to contract, for another without Supreme communi enter into the and the cating assured, Case,1 Court, that, recognizes with the reinforces that in the Blum the rule general, plaintiff agent gen a broker an As was where or has a view. this custom chargeable represent plaintiff power was with of when the to in m&t- eral employment appar made contract of relating he Mr. his has to or the térs ent employment was made in authority accept the such or to notice cancellation light meaning custom, construing agent of such the policy, the of such or substitution employment, accept such the of to cancellation is authorized broker y. Tex.) SHIPPERS’ COMPRESS CO. NORTHERN ASSUR. CO. agent thereunder, estoppel, that, tliority rule the this custom of the of to effect where principal should be considered. has led another authority believe that to Upon act, principal of the mat- a careful consideration has can- such opinion complained say of, ters of are the later was without such assignments upon equi- over- the said should be is based this rule exist, ty. authority ruled. Where the actual does not assignment upon plaintiff bring In the it is him- third claimed the burden is the finding following authority. apparent the In the court erred in self the within rule of plaintiff fact: has this case the failed do holding for there is no evidence of a out deciding “In case I took the view general agents defendant, of cer- the Belk the and no evidence that Rice & tain insurance the authority them for upon any to secure apparent relied insurance, time that at the same agents in Rice of the Northern writing & Belk as the agents special of their customers wore tor- purposes, when a client certain nado insurance. phoned procure valid in- them to customer court [7] This case tried before became, a lim- kind jury, of the fact without a view telephoning extent, person ited of the authority upon question of procured.” evidence insurance was valid undisputed, failure court question grouped with fourth This seems to be file his conclusion lawof assignment, complains follow- of the authority of the is immateri Belk ing finding of fact: al, error. and cannot reversible constitute ques- “It to me seems that when became The trial court found facts reference in his as to or not tionable insurance mind whether authority fail to the of Rice Belk. The for his tried secure Belk had up ure court conclusions of law 'of the to file not, that under was valid customer question authority on the of Rice have, authority as well as under would then immaterial, Belk is of the fact reason out, authority set the custom have evidence, if even Rice & Belk change company about in a risk authority to act for had ern Assurance and bind North question.” could no which there proposition under these as- The made insurance, the Belk tornado in action of Rice & signments that,- acceptance on behalf substituting Insur Commercial request appellant’s the insurance, Northern of binder the North authority Belk to authority agents ern was within exhausted, represent appellant representatives as the subsequent attempt cancel the binder their of reason of such North action obliga- Northern and substitute ern Assurance was relieved of notice Union without ion Commercial liability. appellant and of effect. void no We are unable find' merit in contrary, urged it is On the that as the assignments appellee, and the are tentions of undisputed evidence shows that Rice & therefore overruled. to bind the North- had no remaining assignments, The after a careful Company upon poli- ern a tornado ap- record, are review the pellant The overruled. holding cy has, opinion, trial our fair the defendant as below, fact assured, it is not reversi- with such by the trial court conclusions law filed trial court to refuse to file error ble law, facts ini are accordance question of law of such conclusions error, record shows and this no reversible Rice & Belk. opinion justice has been bur done. [5, never dealt 6] judgment The of lower court there- is through the Northern Assurance things affirmed. fore all no had its Belk. any capac representing init of Rice & Belk’s ity. Nothing HIGHTOWER, agree dispo- J. C. by ever done was by sition made of case Justice BROOKE. repre believe to lead Company in sented the Rehearing. On Motion writing Plaintiff insurance. of n HIGHTOWER, Appellant source J. filed from has had information C. rehearing cause, lengthy motion for it believe would lead doing challenging were a tornado correctness this court’s opinion judgment, affirming the there but after and in this record is no testi the'opinion indicating mony relied we are of consideration same disposition by in Rice as as made us in the opinion correct, former rea* in the that no appellant’s theory why insurance. son is motion shown apparent scope ruling made; is should not adhere to the based (Tex. REPORTER 208 SOUTHWESTERN injunction motion, rehearing writs of the court be returnable to is therefore pending-; justice where the suit is court overruled. jurisdiction injunction having suits. request appellant, addi- we make At the findings fact, follows: Injunction op tional as <&wkey;110 — 3. Jurisdiction (1) form That standard District Court. transaction this state of at the time statute, by Unless restrained district may throughout properly place, where the venue is laid exer- took injunctions. right policies cise constitutional to issue provision that contained the days’ writ- only five after could be canceled op Legal — <&wkey;480(3) Courts Restraint 4. ten notice. Proceedings — op District Jurisdiction all of (2) not handle did Rice & Belk That Court —Venue. Compress Copi- insurance of the brought proceedings Where restrain pany, insurance justice’s had judgment that said execution on a from which ques- appeal court, policy agents. an has been taken to the district That with other county against the district court of wherein the another only policy insurance tion was the injunction withstanding jurisdiction pending suit was not- appellant; by the taken out ever tornadoes Sayles’ Ann. Civ. St. Vernon’s canceled, in never & Belk also that 4643, relating judge’s 1914, art. to the district record, but one is far as shown injunction power disability grant writs of in case of appellee, and had insurance for the judge. aof resident consult- only instance in that done so op <&wkey;135(4) the Peace Womack, 5. Justices agent, and ob- appellant’s —Re- ing with prom op Appeal Jus- straint Execution — taining his consent thereto. Judgment. tice’s 16, August (3) on It was the custom justice’s appeal Since the effect of an from a city agents in of Hous- judgment jurisdiction judgment to annul the and to confer prohibited upon risks write insurance ton to county court, on enforcement’ instructions, letters of their justice an execution issued judgment under companies said to consider enjoined proceeding may be oppor- an had had ance covered tunity a void writ. notify to cancel did <&wkey;480(3)Conflicting Jurisdic- 6. Courts — the same. op Proceedings. Legal tion-Restraint (4) it the custom On Sayles’ 1914, art. Ann. Vernon’s Civ. St. of Houston to write injunction providing stay 4653, legal writs of supplies companies before proceedings shall returnable to the court be agent. proceedings pending, were received does not where the are injunction adopt an writ to be returned to findings authorize We further our own all county judgment where court of rendered, court, of fact made the trial and con- of to instead the court where rendered. fully that such clude are sustained by the evidence contained record. <&wkey;135(4) 7. Justices Peace —Re- straining Damages—Attor- Execution — ney’s Expenses. Fees jus- In a suit to restrain execution under a judgment appeal from tice’s taken, and attorney’s which has been damages KIESCHNICK et ux. v. MARTIN et al.* actual unlawful issuance levy (No. 6004.) writ of execution do not include expense attending fees or the court. (Court Appeals of Civil of Texas. Austin. Damages Exemplary Damages — <&wkey;87(2) 30, 1919. Jan. Motion for Rehear- 8. —Necessity Damages. op ing, 19, 1919.) Feb. Actual damages Exemplary may not be recovered — <&wkey;135(4) oe the Justices Peace Re- damages alleged proven. unless actual are straining — — Execution Petition Suffi- ciency. Rehearing. On Motion for enjoin petition, in a A execution suit Privilege — op — <&wkey;32(2) 9. Venue Claim appeal justice’s which Waiver. taken, sufficient as been held provi- To obtain the benefits of the venue demurrer, specifically notwithstanding it Sayles’ Ann. of Vernon’s Civ. St. taken; sion art. seasonablj' allege appeal to what court the privilege 17, the be claimed § must appearing that there but one court to pleading, other- due order appeal legally taken. could waived. have been it will deemed to wise <&wkey;480(3)Injunction Suits —Re- Courts — op Privilege- Legal Proceedings. <&wkey;32(l) 10. Venue straint oe —Claim Demurrer. county juris- The district court has being merely enjoin jus- general demurrer, intended a suit to execution A diction of tice’s county sufficiency petition challenge an- in another rendered from to operate appeal swer, of Vernon’s 1830, benefits cannot a claim the has been taken to district Sayles’ notwithstanding county, art. Ann. St. of such Civ. Vernon’s relating requiring Sayles’ St. art. Ann. Civ. venue. § Key-Numbered Digests topic and Indexes other eases see same KEY-NUMBER

<§=^Eor granted Supreme 2G, March Court *writ error

Case Details

Case Name: Shippers' Compress Co. v. Northern Assur. Co.

Court Name: Court of Appeals of Texas

Date Published: Jan 23, 1919

Citation: 208 S.W. 939

Docket Number: No. 340. [fn*]

Court Abbreviation: Tex. App.