Bickel v. American Trust Life Insurance Company

• Decision Date: 18 June 1971
• Docket Number: No. 4460,4460
• Citation: 468 S.W.2d 873
• Parties: Myron O. BICKEL, Appellant, v. AMERICAN TRUST LIFE INSURANCE COMPANY and T. K. Pennell, Appellees .
• Court: Texas Court of Appeals

Page 873

468 S.W.2d 873

Myron O. BICKEL, Appellant, v. AMERICAN TRUST LIFE INSURANCE COMPANY and T. K. Pennell Appellees .

No. 4460.

Court of Civil Appeals of Texas Eastland.

June 18, 1971.

Rehearing Denied July 23, 1971.

Jamail & Gano, John Gano, Houston, for appellant.

Fillmore, Parish, Martin, Kramer & Fillmore, H. Dustin Fillmore and Elmer H. Parish, Wichita Falls, for appellees.

WALTER, Justice.

Myron O. Bickel filed suit against American Trust Life Insurance Company and Truman K. Pennell for damages for tortious interference by Pennell with a contract between Bickel and American and against American for its derivative responsibility for Pennell and for American's alleged breach of the contract. Bickel has appealed from an adverse judgment.

The contract, executed December 1, 1967, between Bickel and American was for the purpose of developing insurance sales in connection with 'Self-Employed Individual pension plans qualified under HR--10'.

The jury found that Bickel represented to American that Texas Bank and Trust was the only bank that was legally capable of acting as trustee for split-funded HR--10 business; that American relied upon such representation; that Bickel made such representation to induce American to enter into the contract; that such representation was untrue; that Bickel represented that American could place all of its HR--10 business through the Texas Owners Employees Association and the Texas Bank and Trust; that such representation was relied upon; that Bickel made such representation to induce American to enter into the contract; that such representation was untrue; that Bickel represented to American that the Texas Owners Employees Association was essential and necessary in writing the split-funded HR--10 business; that American relied on such representation; that such representation was made to induce American to enter into the contract, and that such representation was untrue. The jury also found that at the time Bickel made the three untrue representations, he believed them to be true and that American and Pennell believed such representations to be true. American pleaded that the contract was fraudulently induced by false representations and that in the alternative there was a mutual mistake with regard to such representations. In Earp v. First State Bank of Abilene, Tex.Civ.App., 356 S.W.2d 178 (writ ref. n.r.e.), the court said:

'A mutual mistake concerning a material fact does constitute a ground for avoiding a contract but the mistake must be mutual rather than unilateral. 13 Tex.Jur.2d 476; Sun Oil Company v. Bennett, 125 Tex. 540, 84 S.W.2d 447.'

Appellant contends that Bickel's representations to American were issues on evidentiary matters and were not ultimate issues of fact. In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W .2d 79 (Sup.Ct.1940), the Court said:

'The terms 'ultimate issues,' 'ultimate facts,' 'essential facts,' 'essential issues,' and 'controlling issues' are frequently used synonymously. An ultimate fact is one essential to the right of action or matter of defense. If an ultimate fact is involved in a case, which is essential to the claim or defense, and is necessary to form the basis of a judgment, it is the duty of the court to submit such issue for determination by the jury. On the other hand, it is not necessary to...