Dargan v. Robinson, 8865.

• Decision Date: 17 April 1940
• Docket Number: No. 8865.,8865.
• Parties: DARGAN et al. v. ROBINSON.
• Court: Texas Court of Appeals

140 S.W.2d 561

DARGAN et al. v. ROBINSON.

No. 8865.

Court of Civil Appeals of Texas. Austin.

April 17, 1940.

Rehearing Overruled May 22, 1940.

Appeal from District Court, Schleicher County; O. L. Parish, Judge.

Action by T. P. Robinson against K. S. Dargan and others for failure to procure fire policy covering cotton owned and transported by plaintiff on his own trucks. From a judgment for the plaintiff, defendants appeal.

Reversed and remanded.

Upton, Upton & Baker, of San Angelo, for appellants.

Joab Campbell, of Eldorado, for appellee.

BAUGH, Justice.

The parties will be designated as in the trial court. Robinson as plaintiff sued K. S. Dargan, A. L. McMurtrey and Leslie L. Baker for damages for failure to procure for him a fire insurance policy covering cotton owned and transported by him on his own trucks from Eldorado, Texas, to gulf ports during the cotton season of 1936. He alleged the following:

"(6) That heretofore to-wit, on or about the 10th day of October, A. D. 1936, the defendants, acting jointly and through their agents as aforesaid, as well as individually, for the consideration hereinafter mentioned, agreed and contracted with plaintiff in their capacity as fire insurance agents, as aforesaid, that from and after said date, all bales of cotton belonging to plaintiff, while in or on the hereinafter described motor truck for transportation, should stand and be insured, for one year from said date, against loss by fire in and with one of said fire insurance companies, in the sum of One Thousand Dollars for a premium of $25.00 which plaintiff agreed and became liable to pay the defendants;

"(7) That on said last named date, the defendants, acting jointly and severally, further agreed and contracted with plaintiff that within a reasonable time, a policy should be duly executed by one of said fire insurance companies for the said sum of $1,000.00 and delivered to plaintiff at Eldorado, Texas, that the said policy should be in the usual form of policies issued by said fire insurance companies and in accordance with the terms of said contract."

He further alleged that on November 6, 1936, he lost by fire in transit 13 bales of cotton of the value of $800 which would have been protected by insurance but for the failure of the defendants to procure the policy they agreed to procure for him.

K. S. Dargan was a licensed fire insurance agent at Houston, Texas; A. L. McMurtrey a licensed fire insurance agent at San Angelo, Texas; and Leslie L. Baker, assistant cashier of a bank at Eldorado, Texas, with which Robinson did business. Baker was not a licensed fire insurance agent. He did, however, assist McMurtrey in procuring insurance business, who divided commissions with him. When Robinson made known to Baker that he desired insurance to cover his operations, Baker contacted McMurtrey who came to Eldorado, took the matter up with Robinson and undertook to procure for him the insurance desired. Three types of insurance on Robinson's trucks were requested; public liability, property damage, and cargo insurance. At the time McMurtrey did not know the premium rates on any of them. He took the matter up with Dargan who placed such insurance with one of his companies. When the policies arrived the public liability and property damage rates were much higher than anticipated, and Robinson was unwilling to accept them; and advised Baker to see if he could have these policies cancelled. This Baker succeeded in doing. At the same time the cargo insurance, which had been bound by telegram from Dargan to McMurtrey, was, after a telephone conversation between Baker and McMurtrey, also cancelled, but Robinson was not notified of this cancellation.

Appellants' defenses were that there was no agreement made, in that the minds of the parties never met on the terms of the policy; that Baker was the agent of Robinson, who was bound by his conduct, and not the agent of appellants; and that Baker had requested appellants, prior to the fire, to cancel all of said insurance.

The case was submitted to a jury on special issues, in answer to which they found, in effect, as follows:

1. That appellants agreed with Robinson for a premium of $25 to insure, for a period of one year from October 10, 1936, to the extent of $1,000, all cotton handled on the truck involved.

2. That the market value of the 13 bales of cotton destroyed by fire was $767.14.

3. That McMurtrey held Baker out as his agent for the purpose of soliciting insurance.

4. That the minds of the parties did meet on the terms of the policy...