Hartford Acc. & Indem. Co. v. Parrott

• Decision Date: 19 October 1972
• Docket Number: No. 7371,7371
• Citation: 486 S.W.2d 405
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Appellants, v. Tommy PARROTT et al., Appellees.
• Court: Texas Court of Appeals

Page 405

486 S.W.2d 405

HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Appellants, v. Tommy PARROTT et al., Appellees.

No. 7371.

Court of Civil Appeals of Texas,

Beaumont.

Oct. 19, 1972.

Mehaffey, Weber, Keith & Gonsoulin, Beaumont, for appellant.

Waldman & Smallwood, Alvin E. Wiggins, Beaumont, for appellee.

KEITH, Chief Justice.

The appeal is from a judgment awarding plaintiff.$2110, representing the difference in value of a 1965 PONTIAC GTO automobile before and after a collision in which it was involved. Plaintiff sued the appellant insurance company alleging that it had issued a certain policy of insurance specifically covering such vehicle against collision and upset; that the car was demolished on or about March 24, 1966; that the defendant had denied coverage, etc. Plaintiff also joined the agent whom he alleged issued the policy and sought judgment against him, in the event he did not recover against the insurer. At the conclusion of the evidence, the trial court instructed a verdict for the individual defendant and no complaint is made of such action upon this appeal. The confused record which we review makes an extensive statement necessary.

Although plaintiff alleged that the defendant had issued a policy of insurance, and averred that a copy was attached to his petition, no such copy was attached nor was one introduced upon the trial of the cause, and we do not have in our record any evidence of the terms and conditions of the alleged policy of insurance.

The only evidence we find in our record as to the terms and conditions of the policy upon which plaintiff declared came from the codefendant, Robert Houseman, called as an adverse party by plaintiff. Houseman identified several instruments, among which was one designated 'Producer's Copy.' Such instrument is a memorandum from Houseman's file showing, inter alia, the policy number, the name of the insured, the effective dates of the policy, the description of the insured vehicle, the coverages afforded by the policy, the amount of the premium, and the name of the loss payee, a bank.

Another instrument was a form designated 'Substitution of Automobile' bearing the date of March 11, 1966, which substituted the Pontiac GTO for the Pontiac Tempest. Houseman agreed with counsel that this second memorandum 'is not an insurance policy.'

In the body of the first memorandum we find this language: 'The insurance afforded is only with respect to such of the following coverages as are indicated by a specific premium charge or charges. The limit of the Company's liability against each such coverage shall be as stated herein, Subject to all the terms of this Policy having reference thereto.' (Emphasis supplied.)

By an instrument dated February 17, 1966, defendant notified plaintiff that the policy would be cancelled effective March 1, 1966, and plaintiff stipulated that he actually received such notice through the mail sometime between February 17 and March 1, 1966. Houseman's notification of the cancellation was given in the form of an instrument dated March 7, which he received shortly thereafter. There being no policy in evidence, we cannot determine whether such cancellation was in accordance with the policy provisions.

We now come to the critical area of the dispute between the parties: the coverage, if any, upon the Pontiac GTO automobile for the loss of which plaintiff recovered. Houseman testified that he issued the rider heretofore mentioned which changed the designated automobile as a Pontiac GTO because plaintiff had showed to him two money order receipts which Parrott said that he had sent to Hartford to pay the delinquent installments upon the policy. Houseman fixed this as being 'prior to the effective date of the cancellation,' i.e., before March 1; whereas, plaintiff says that this was done 'way before' March 10, when he bought the GTO. Neither the money orders, the receipts exhibited to Houseman, nor any other tangible evidence of payment was offered and there is no record properly showing that the defendant insurer ever received such money orders. Plaintiff did admit that even after sending these two payments he would not have paid his premium note in full, and would still have owed 'about another two or three months.'

We note, however, that in the notice of cancellation, the insurer had predicated its cancellation upon plaintiff's default of a premium payment amounting to $34.56, and the jury found in answer to Special Issue No. 2 that the defendant received this precise sum 'prior to March 1, 1966.'

Having overruled defendant's motion for peremptory instruction, four issues were submitted to the jury which we summarize: (1) plaintiff mailed 'the sum of approximately $34.56' to defendant prior to March 1, 1966; (2) which was received by defendant prior to March 1, 1966; (3) that defendant did not cancel the policy in question 'pursuant to the notice of cancellation'; and (4) answered negatively, i.e., did not find from a preponderance of the evidence, that defendant 'reinstated the insurance policy in question.'

The court overruled defendant's motion for judgment non obstante veredicto and entered judgment for the plaintiff. The motion for new trial provides proper bases for a discussion of the several points raised upon the appeal.

Plaintiff's right to recover rests upon the contract or policy of insurance, and the insurer's general denial put in issue all of the material facts except those which are required to be denied under oath. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 378 (1959). Execution and delivery of the policy was not denied under oath and, under the provisions of Rule 93, Texas Rules of Civil Procedure, the policy would have been admissible in evidence without proving the execution and delivery thereof. But the rider upon which plaintiff Recovered was but a part of the basic policy upon which the...