Gulf Ins. Co. v. Ball
| Decision Date | 04 May 1959 |
| Docket Number | No. 6890,6890 |
| Citation | 324 S.W.2d 605 |
| Parties | GULF INSURANCE COMPANY, a Corporation, Appellant, v. Elmer BALL, Appellee. |
| Court | Texas Court of Appeals |
Carter, Gallagher, Jones & Magee, Dallas, for appellant.
Burford, Ryburn & Ford, Aubrey J. Roberts, Dallas, for appellee.
Appellee, E. F. (Elmer) Ball, sued appellant, Gulf Insurance Company, a corporation, for recovery by reason of a fire loss sustained under the terms of a policy of trip transit insurance issued by appellant. The record reveals that on or about August 5, 1948, appellee shipped 110 truck tires valued at $11,000 from Dallas, Texas, to Brownsville, Texas, by way of truck trailer with M. M. Dickerson, Jr., as the carrier, upon which tires appellee had issued by appellant a trip transit insurance policy for $8,910 against loss coverage and that the said load of tires, while in transit, was forced off of the highway and into a ditch to avoid a collision with another motor vehicle and in so doing Dickerson's truck collided with an embankment causing extensive damage to his truck. Thereafter Dickerson managed to disconnect the truck from the trailer and remove the truck from the ditch but was unalbe to remove the loaded trailer, which burned at night time by the side of the highway, as a result of which this suit arose. The trial court rendered judgment for appellee in the sum of $8,910 upon a jury verdict duly returned into court, from which judgment appellant perfected an appeal.
Appellant presents 21 points of error of which the first 12 points are grouped and briefed together contrary to the rules of briefing because some of them concern separate and distinct matters. It has been held that assignments of error pointing out separate and distinct matters may not be grouped for consideration in briefing. Outlaw v. Bowen, Tex.Civ.App., 285 S.W.2d 280, and other authorities there cited. Appellant seeks here to complain in its first point about the exclusion of certain testimony offered by one of its agents in response to a conditional question propounded concerning appellant's procedure customs under given circumstances, which question and answer thereto is not related to other matters with which it is grouped for briefing and some of the other 11 points are not closely enough related to each other for group briefing. However, because of our liberal policy to consider such points so grouped and presented so long as we can separate them and determine with some degree of certainty what the briefer is complaining about, we shall consider as best we can all of the said points, although appellant's failure to observe the rules of briefing under such circumstances increases our burden and may cause some of the intended merits of appellant's points of error to be overlooked or neglected. For all of these reasons the attempt to group unrelated matters for briefing is here condemned.
According to the record before us, without exceptions or objections of either party, the trial court submitted 11 special issues to the jury, which in answer thereto found in effect that M. M. Dickerson, Jr. had notified appellant's agent, Floyd R. Garrett, at the time the policy was written that appellee was the owner of the tires in question; that Dickerson requested appellant's agent Garrett to issue the said trip transit policy in the name of appellee; that the failure of the said trip transit policy to name appellee as the insured was a mistake in reducing to writing the concurring intentions of Dickerson and Garrett; that the 110 truck tires covered by the said trip transit policy were in the truck trailer when it departed from Dallas for Brownsville and that such was true when the same, valued at $11,556, were destroyed by fire; that Dickerson was not an independent contractor for appellee in transporting the tires in question but that Dickerson acted as agent for appellee in transporting the said tires; that Dickerson failed to use all reasonable means to save and preserve the said tires after the collision of his truck with the embankment and before the fire occurred but that his said failure was not the cause of the loss sustained by reason of the fire in question. Based upon such findings the trial court rendered judgment accordingly for appellee.
Appellant contends there was no evidence to support the jury findings in answer to special issues Nos. 1, 2, 3 and 10 to the effect that appellant's agent Garrett had been notified by Dickerson that appellee owned the tires, that Dickerson requested appellant's agent Garrett to issue the policy in the name of appellee, that the failure to issue the policy in the name of appellee was due to a mistake in preparation thereof, and that the loss due to a fire was not caused by the failure of Dickerson to use all reasonable means to save and preserve the tires after he had the truck accident by running into an embankment by the side of the highway, and appellant further contends that in any event the evidence was insufficient to support each of the foregoing jury findings and that by all means the said jury findings were against the great weight and preponderance of the evidence. The evidence heard concerning the foregoing issues is too lengthy to set out in this opinion but an examination of all of the evidence, some of which is not controverted and some of which is supported by appellant's verified admissions found in the record, reveals an abundance of evidence to support the jury findings here challenged and an examination of all of the evidence refutes appellant's contentions to the effect that the said jury findings were against the great weight and preponderance of the evidence. There was an abundance of evidence to the effect that appellant's agent made a clerical mistake in naming M. M. Dickerson, Jr. as the insured and in failing to name appellee as the insured in accordance with instructions so to do and in making the insurance amount...
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