American General Ins. Co. v. Nance

• Decision Date: 01 April 1933
• Docket Number: No. 11397.,11397.
• Citation: American General Ins. Co. v. Nance, 60 S.W.2d 280 (Tex. App. 1933)
• Parties: AMERICAN GENERAL INS. CO. v. NANCE et al.
• Court: Texas Court of Appeals

60 S.W.2d 280

AMERICAN GENERAL INS. CO. v.NANCE et al.

No. 11397.

Court of Civil Appeals of Texas. Dallas.

April 1, 1933.

Rehearing Denied April 29, 1933.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by J. H. Nance against the American General Insurance Company, Mrs. G. R. Underwood, and her husband.From a judgment for plaintiff against named defendants, defendant insurance company appeals.

Affirmed.

Leake, Henry & Young, Hawkins, Golden, and G. H. Crane, all of Dallas, for appellant.

Sullivan & Wilson and J. Lee Zumwalt, all of Dallas, for appellees.

LOONEY, Justice.

On October 11, 1929, S. L. (Sam) Nance died from injuries sustained in the course of employment with Texas Big Boy Company, Inc., a subscriber under the Compensation Law, the Texas Employers' Insurance Association being the carrier of insurance.Nance left surviving a daughter, Laverne, about twelve years of age, and his mother and father, Mr. and Mrs. J. H. Nance, statutory beneficiaries under the Compensation Law.The deceased also carried a policy on his life with the Reserve Loan Life Insurance Company of Indianapolis, Ind., his daughter, Laverne, being the beneficiary.Mrs. G. R. Underwood, mother of Laverne, prior to her marriage with G. R. Underwood, was the wife of Sam Nance, from whom she was divorced, and, during the happenings with which we are dealing, Laverne was a constituent of the family of her mother.On December 3, 1929, Mrs. Underwood was appointed guardian of the person and estate of Laverne, by the probate court of Dallas county, duly qualified as such, executing the usual statutory bond (G. R. Underwood, husband, joined pro forma), in the sum of $10,000, with appellant, the American General Insurance Company, as surety.

The claim of the minor for compensation under the Workmen's Compensation Law and the $1,000 life policy constituted the estate, and the guardian, in due time, inventoried the same.Under orders of the probate court, the claim for compensation was settled for $3,000, and, accordingly, the Sixty-Eighth district court of Dallas county, in a suit brought by Mrs. Underwood and her attorney against Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board, adjudged to Mrs. Underwood, as guardian, $2,000, and $1,000 to L. M. Ballowe, her attorney.These amounts were subsequently paid by the Insurance Association to Mrs. Underwood and Ballowe, respectively; and the amount due on the Reserve Loan Life Insurance Company policy, to wit: $1,000, less $22.78 unpaid premium, leaving $977.22, was also paid to Mrs. Underwood, making a total amount collected by her as guardian the sum of $2,977.22.These payments were in the shape of checks drawn by the respective companies payable to Mrs. Underwood as guardian of the estate of Laverne Nance, and, by her, were indorsed and delivered to Ballowe, because, as she said, "he was our trustee and an attorney."Ballowe collected the drafts, appropriated the money to his own use, and died insolvent.

On November 3, 1930, J. H. Nance, appellee, grandfather of Laverne, filed a petition in the probate proceedings, alleging the embezzlement and loss of the funds belonging to the estate, praying that Mrs. Underwood be removed as guardian, and that the court appoint some suitable person her successor.On November 7th, the petition was heard and granted, Mrs. Underwood appealed to the district court of Dallas county (101st district), and, on trial de novo, July 24, 1931, the judgment of the probate court was affirmed.The judgment of the district court contains, among others, the following recitation: "And it appearing to the Court from the verdict of the jury that Mrs. G. R. Underwood, Guardian of the Estate of Laverne Nance, a minor, has misapplied all the funds and property belonging to the estate of the said Laverne Nance, a minor, and that she should be removed as guardian of the Estate of Laverne Nance, a minor.It is therefore considered, ordered, adjudged and decreed by the Court, that the said Mrs. G. R. Underwood be and she is hereby removed as guardian of the estate of the said Laverne Nance, a minor, and that the said Mrs. G. R. Underwood be and she is hereby required to surrender her letters of guardianship of the estate of the said Laverne Nance, a minor, and that the said Mrs. G. R. Underwood be and she is hereby required to account for all the property of every kind belonging to the said estate of the said Laverne Nance, a minor.It is further ordered, adjudged and decreed by the Court that the said Mrs. G. R. Underwood deliver all the property of every kind belonging to the estate of the said Laverne Nance, a minor, to such person as the County Court of Dallas County, Texas, shall appoint and qualify as guardian of the estate of the said Laverne Nance, a minor."

Thereafter, the court appointed J. H. Nance, appellee, guardian to succeed Mrs. Underwood, and on September 29, 1931, after qualifying, instituted this suit on her bond, against her as principal, the American General Insurance Company as surety, her husband being joined as defendant pro forma, to recover the amount of the funds belonging to the estate that were lost, as hereinbefore shown.

At the conclusion of the evidence, the court directed verdict for appellee against Mrs. Underwood and surety for $2,977.22 (the amount of the two insurance claims collected), with interest, and in favor of the insurance company (on its cross-bill) against Mrs. Underwood for same amount, directed verdict for G. R. Underwood, and judgment was rendered accordingly.

Appellant took a bill, and assigns error because the trial court included, in the statement of facts, certain exhibits in regard to which a controversy arose, that is, appellants contended that the exhibits (being certified copies from the probate and district courts of pleadings and orders relating to the matters under consideration) were not introduced in evidence, whereas, appellee contended that they were introduced and should be included in the statement of facts.

We do not deem it necessary to lengthen this opinion by a more extended statement of this matter, for, as we view the question, the action of the trial judge overruling the contention of appellant, and making said exhibits a part of the statement of facts, is not open to review by this court.

In 3 Texas Jurisprudence, pages 624, 625, § 438, the rule is stated as follows: "When a judge is required to prepare a statement, it is his duty to make up a statement of all the facts proved at the trial, as it would have been the duty of the parties had they agreed upon a statement; and if the parties cannot agree as to whether a document was introduced in evidence, it is his duty, by a positive and unequivocal act, either to incorporate it in or exclude it from the statement, according to whether it was admitted or excluded.Matter to be incorporated in the statement rests within the exclusive judicial recollection and discretion of the trial judge, and is a matter which must be determined by him alone.The appellate court cannot dictate what shall be included, nor may a statement be called in question in the appellate court as not stating the facts proved on the trial."We therefore overrule the contention of appellants in regard to this matter.

It is contended that the court erred in not sustaining general demurrers urged by appellants, and in not directing a verdict in their favor, because it was neither alleged nor proven that a demand was made by appellee on Mrs. Underwood for the delivery of the property and funds belonging to the estate of said minor.

As shown above, the judgment of the district court removing Mrs. Underwood from the guardianship found that she had misapplied "all the funds and property belonging to the estate," requiring her to account for same, and that she"deliver all the property of every kind belonging to the estate of the said Laverne Nance, a minor, to such person as the County Court of Dallas County, Texas, shall appoint and qualify as guardian of the estate of the said Laverne Nance, a minor."

This order follows the statute in case of a removal (article 4235), and article 4237 provides that, "if a guardian * * * be removed, he or his legal representatives shall account for, pay and deliver to the person legally entitled to receive the same, all the property of every kind belonging to the estate of the ward at such time and in such manner as the court shall order. * * *"

The funds belonging to the estate of the minor were converted by Ballowe, Mrs. Underwood's attorney, and, in fact, never reaching her hands.In their answer, appellants say the guardian never received any of said money or any part thereof, and therefore that no accounting by the guardian was required, and no liability existed.This being the attitude of appellants, demand upon Mrs. Underwood by appellee for the delivery of the estate would have proven futile.However, we do not think a formal demand was required as a condition precedent to the institution of suit upon the bond.The order of court, and the controlling statute, placed an affirmative duty upon Mrs. Underwood to render an accounting and to deliver the estate, of the ward, to J. H. Nance, her successor in the guardianship, and failure on her part, in this respect, gave rise to a cause of action on her bond, no formal demand being necessary as a condition precedent to the institution of suit.Ballew v. Casey, 60 Tex. 573, 575;Coe v. Nash(Tex. Civ. App.)40 S. W. 235, 242;Hill v. Escort, 38 Tex. Civ. App. 487, 86 S. W. 367;Green v. Scales(Tex. Civ. App.)219 S. W. 274, 275.

Appellants contend that the court erred in refusing to submit issues requiring the jury to find the capacity in which G. R. Underwood signed the bond, that is, whether as principal or surety.The construction of written instruments is a question of law for the court, and not of fact for...