Burroughs v. Bunch
| Decision Date | 18 March 1948 |
| Docket Number | No. 4550.,4550. |
| Citation | 210 S.W.2d 211 |
| Parties | BURROUGHS v. BUNCH et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Ector County; Cecil C. Collings, Judge.
Action by J. A. Bunch and another, doing business as Bunch Construction Company, and others against F. L. Burroughs, doing business as F. L. Burroughs & Company, for damages for failure to obtain insurance policy under contract. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Roy E. Prothro, of Odessa, and Pinkney Grissom, of Dallas (Thompson, Knight, Harris, Wright & Weisberg, of Dallas, on the brief), for appellant.
Blanton, Deaderick & McMahon and Wm. B. Deaderick, all of Odessa, for appellees.
This is an appeal from the District Court of Ector County. J. A. Bunch and E. C. Bunch, doing business as Bunch Construction Company, and Henry and Frances Biggs, as plaintiffs, sought recovery of damages against F. L. Burroughs, doing business as F. L. Burroughs & Company, for failure to obtain an insurance policy on a certain house adjacent to the city of Odessa under construction by the said Bunch Construction Company for Mr. and Mrs. Biggs under a cost plus contract. The trial was before the court with a jury, submission on special issues, and on the verdict returned the court entered a judgment in favor of plaintiffs in the sum of $9,783.85. Defendant Burroughs has perfected this appeal. Most of the points of error involve the contention that the evidence was insufficient to justify a recovery by the plaintiffs or to support the findings of the jury.
Plaintiffs plead in substance that defendant Burroughs was a general insurance agent representing numerous fire insurance companies, and was engaged in business at Odessa, Texas, further that plaintiffs E. C. and J. A. Bunch entered into a contract with plaintiffs Mr. and Mrs. Biggs to build for them a house just outside the city limits of Odessa, the said house to be built by said contractors on a cost plus basis, the cost to be approximately $16,000, the said contractors to receive as compensation 15% of the total cost and expense of construction. The date of said contract was about June 26, 1946; that on or about said date E. C. Bunch entered into a contract with defendant Burroughs through Riley Brooks, the duly authorized agent of Burroughs, to issue an insurance policy known as a builder's risk policy in the sum of $16,000, to cover the said building aforesaid contemplated to be erected by the said contractors for the other plaintiffs, the said policy to be in full force and effect from and after the 26th day of June, 1946, until the building was completed. It is alleged that since January 1, 1946, there had been a course of dealings between E. C. Bunch and J. A. Bunch and defendant Burroughs whereby said defendant had issued to them various policies covering builder's construction risk in Odessa, and settlement for the premiums was made by the Bunches at the time of the completion of the building; that Bunches prosecuted the construction of said building with due diligence and by August 16, 1946, there was reasonably expended in the construction of said building the sum of $11,204.11; that on said date the building was destroyed by fire; that said Burroughs breached his agreement to obtain insurance for plaintiffs Bunch and that his conduct in the premises was negligent and that on account of the negligence of defendant Burroughs to obtain said policy plaintiffs had been damaged in the sum of $11,204.11.
After the close of the evidence plaintiffs, under the leave of the court, over the objection of defendants filed a trial amendment. In substance the trial amendment alleged that on or about June 26, 1946, plaintiff E. C. Bunch told defendant's agent, Riley Brooks, that he was starting to erect for Biggs and wife a home on a cost plus basis, same to cost between $16,000 and $18,000, and to be located about a thousand feet west of the old County Airport, and five blocks from the city limits, and ordered a builder's risk insurance policy to be written on said premises, and that Brooks, acting on behalf of Burroughs, agreed to obtain said policy if same could be written on a house outside the city limits, and agreed to notify said Bunch if he could not write such policy; that there had been a prior course of dealings between the plaintiffs Bunch and defendant Burroughs by which said plaintiff ordered from Burroughs through Brooks policies on jobs on which they controlled the insurance; that Burroughs would write the policies and when the jobs were completed send bills for the premiums; that Burroughs would be given the names of the owners, the approximate cost of the building and the location thereof; that defendant's agent Riley Brooks was negligent in failing to notify said plaintiffs he had not obtained said policy; that such negligence resulted in said plaintiffs not having a builder's risk policy on said date, and damaged the plaintiffs in the sum of $11,000. Defendants answered by general denial.
The jury found, in substance, that Brooks, acting for Burroughs, promised Bunch in consideration of the regular premiums thereon that he would, if it were possible for him to so do, have issued a policy of builder's risk insurance in the sum of $16,000 covering the Biggs job on West 10th Street; that Brooks could have obtained such policy; that Brooks promised Bunch he would notify him if the policy could not be written; that plaintiffs E. C. and J. A. Bunch relied upon the representations of Brooks that he would advise them if the policy could not be written; that Brooks was negligent in failing to notify plaintiffs before the building was destroyed by fire that said insurance had not been obtained; that such negligence was the proximate cause of plaintiffs not having builder's risk insurance on the property at the time of the fire; that the difference in value of the property just before and just after the fire was the sum of $9,804.11; that Bunch gave Brooks sufficient information to write the policy.
In view of the fact that appellant's points of error from 1 to 9 inclusive each and all are in substance that the judgment herein should have been in favor of defendants, a consideration of the evidence is appropriate, in fact it is thought a general consideration and determination as to the sufficiency of the evidence to support the verdict and the judgment will render a separate consideration of each of the nine points unnecessary. At all relevant times defendant Burroughs conducted an insurance brokerage business in the city of Odessa, along with a loan and real estate business. He represented some seven or eight fire insurance companies. Riley Brooks was in charge of the insurance department of the business conducted by said Burroughs. The Burroughs agency could at all relevant times write insurance on buildings in and adjacent to the city of Odessa. E. C. and...
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