Benson v. Travelers Ins. Co., 17580

• Decision Date: 26 February 1971
• Docket Number: No. 17580,17580
• Parties: Lloyd E. BENSON, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 709

464 S.W.2d 709

Lloyd E. BENSON, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 17580.

Court of Civil Appeals of Texas,

Dallas.

Feb. 26, 1971.

Homer A. Brown, Brown, Brown & Bowen, Garland, for appellant.

John A. MacKintosh, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

The Travelers Insurance Company brought this action against Lloyd E. Benson to recover the sum of $760 alleged to have been paid Benson through mistake and amounting to an overpayment of that sum in connection with the disposition of an automobile collision loss claim. The material antecedent facts are without dispute.

In June 1968 Travelers had in force and effect a policy of automobile insurance covering a 1968 Buick automobile owned by Benson. This policy afforded collision coverage with $100 deductible. On June 19, 1968 Benson's wife was involved in a collision while driving the insured vehicle. Benson asserted a claim under the policy. Due to the seriousness of the damages to the car Benson thought that the loss should be total. Travelers, acting through Property Damage Appraisers, secured a repair estimate covering the cost of repairing the damage, same being the sum of $1,106.69. Benson was told by Property Damage Appraisers that the cost of repairs would be in the neighborhood of $1,200. Benson did not have anyone inspect the automobile or render an estimate to him for the cost of repairs. Travelers elected to have the automobile repaired for the cost estimate. Bill Curry Buick Company did the repair work. Prior to the time the repairs were made the claim was processed in the office of Travelers by an adjuster, Guy B. McDonald . McDonald, in processing the necessary papers to pay the claim, stated that in reading the total column on the repair estimate it appeared to him that the figure read '$1,866.69' rather than '$1,106 .69' Mr. McDonald then applied the $100 deductible provision to the amount incorrectly read by him and issued a draft payable to Benson, and the Oak Cliff Bank & Trust Company, in the amount of $1,766.69. The draft for this amount, attached to a subrogation agreement, was mailed to Benson who received same and kept it in his possession for approximately two weeks before going to Bill Curry Buick Company to pick up his repaired car. He cashed the draft and paid Bill Curry Buick Company the sum of $1,106.69 upon his receiving his automobile. Prior to that time he had never had any contact with Adjuster McDonald. He admitted that the actual cost of repairs to the automobile was $1,106.69. At the time he negotiated the draft he knew that he had received $760 more than the actual cost of repairs, less the deductible. He did not call this fact to Travelers' attention. Subsequently, Travelers discovered the error and made claim on Benson to return the sum of $760. This suit was instituted following failure of Benson to return the money.

In answer to Travelers' suit Benson asserted the defense of accord and satisfaction. The case was tried to the court and a jury which found, in response to the only special issue submitted, that at the time Benson cashed the draft for $1,766.69 there was no good faith dispute between the parties as to what amount of money was actually owed by Travelers on account of the collision damage claim in question. Based upon this jury verdict, together with the undisputed facts, the trial court rendered judgment in favor of Travelers against Benson for $760.

In one of his primary points on appeal appellant contends that the trial court should not have submitted any issue to the jury because his defense of accord and satisfaction had been established, as a matter of law. We overrule this point.

Our Supreme Court in the recent case of Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex.1970) had occasion to reiterate the elements which are necessary to conclusively establish the affirmative defense of accord and satisfaction: (1) there must be evidence of a new contract, express or implied, in which the parties agree to the discharge of existing obligation by means of the Lesser payment tendered and accepted; (2) the evidence must establish an assent of the parties to an agreement that the amount paid by the debtor to the creditor was in full satisfaction of the entire claim; (3) the minds must meet and where resting in implication the facts proved must irresistibly point to such conclusion; (4) there must be an unmistakable communication to the creditor that the tender of the Lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation, such fact being made plain, definite and certain; (5) that the statement accompanying the tender of the sum Less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation; and (6) that the offer must be accompanied with acts and declarations which the creditor is 'bound to understand'.

To the same effect see the later case of George Linskie Co., Inc. v. Miller-Picking Corp., 463 S.W.2d 170 (Tex.1971).

We have carefully examined the entire record in this case and we are convinced that appellant has failed to meet his burden of establishing the necessary elements of his defense of accord and satisfaction. It is significant to note that the amount paid by appellee was greater and not lesser than the amount of money agreed by appellant to be the cost of repairs to the automobile. It cannot be said that there was an unmistakable communication between the parties to the effect that the tender of the draft was to constitute a new contract. Certainly it cannot be said that the tender of the draft by appellee was clear, full and explicit and not susceptible of any other interpretation. Appellant concedes that he was advised that the cost of repairs would run about $1,200. He knew that he had a $100...