Fuller v. Security Union Ins. Co., 12385.
| Decision Date | 07 February 1931 |
| Docket Number | No. 12385.,12385. |
| Parties | FULLER v. SECURITY UNION INS. CO. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law, No. 2, Tarrant County; P. J. Small, Judge.
Action by W. F. Fuller against the Security Union Insurance Company. From an adverse judgment, plaintiff appeals.
Reversed and rendered.
W. M. Short and H. M. Harrington, both of Fort Worth, for appellant.
John N. Jackson and Julian B. Mastin, both of Dallas, and King, Wood & Morrow, of Houston, for appellee.
The Security Union Insurance Company issued five fire insurance policies to different owners of property situated in the city of Fort Worth. These policies were issued to different firms and individuals, and each of them stipulated for insurance for one year from date. Two of those policies bore date February 14, 1928, one February 27, 1928, another March 20, 1928, and another May 19, 1928, and all were for different amounts. Each of those policies recited the payment of premium paid for one year, and each one stipulated that it would expire one year after its date. Each of the policies contained this stipulation:
All of those policies were canceled on October 25, 1928, by the insurance company, acting under the provisions just quoted giving it the right to so cancel.
The firm of Hard & Hard, who were engaged in the insurance business in Fort Worth at the time, issued all of those policies, signing the name of "Security Union Insurance Company, Fort Worth, Texas," and they were duly authorized by the company so to do. At that time W. F. Fuller was likewise engaged in the fire insurance business in the city of Fort Worth and Hard & Hard issued the policies at his request. The parties to whom the policies were issued had applied to him for such insurance, but since he did not represent insurance companies who would issue the policies of the character desired, he procured their issuance through Hard & Hard, according to a custom between such agents when one could not supply his customer with the insurance desired and some other agent represented a company or companies who would issue such insurance. The policyholders paid the premiums recited in the policies to W. F. Fuller, the same being the full amount required to cover the insurance for one year from the respective dates of issuance.
Fuller did not turn over the premiums so collected by him either to Hard & Hard or to the insurance company, but he credited the firm of Hard & Hard therewith on an account between those two agents, according to which account Hard & Hard then owed him a total greater than the amounts of premiums so collected. The amounts so owing to Fuller by Hard & Hard were not for premiums collected on insurance, but were for services rendered by Fuller in appraising property for a mortgage company for which Hard & Hard were also doing business.
After the policies were canceled, Fuller issued to the holders of the same, policies in other companies represented by him and credited the parties taking the same with the amounts of the refunds on the old policies in the way of payment of premiums on the new ones. At the same time he took an assignment of such refunds to him in consideration of credits so given.
This suit was instituted by Fuller to recover of the insurance company the amount of such refunds and he has appealed from a judgment denying him that relief. The case was submitted to a jury on special issues, which, together with the findings thereon, are as follows:
Testimony offered, conclusively proved that neither the defendant company nor the firm of Hard & Hard ever received any part of the premiums paid to Fuller by the policyholders, unless it can be said that the charge made by Fuller against Hard & Hard on the account he kept with them was equivalent to a payment of those premiums in money. It was proven by uncontroverted testimony that a custom prevailed among insurance agents doing business in the city of Fort Worth for one agent to procure insurance for his clients through an agent representing other insurance companies under certain conditions, the premiums for insurance so procured, in some instances at least, being collected by the first agent. Accounts between the two agents were kept in which each agent was charged and credited with the business done in pursuance of such interagency plan, and at the close of stated periods a balance would be struck and the account settled by payment from one agent to the other of the balance thus shown to be owing.
However, it was a controverted issue under the testimony as to whether that custom related exclusively to premiums collected on insurance policies. The plaintiff's testimony was, in substance, that according to that custom he had the right to charge up against Hard & Hard demands against them growing out of any and all transactions whether arising in the insurance business or not, and therefore the...
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