J. E. Earnest & Co. v. Word

• Decision Date: 04 June 1941
• Docket Number: No. 1864-7637.,1864-7637.
• Parties: J. E. EARNEST & CO. v. WORD.
• Court: Texas Supreme Court

152 S.W.2d 325

J. E. EARNEST & CO. v. WORD.

No. 1864-7637.

Commission of Appeals of Texas. Section B.

June 4, 1941.

Error to Court of Civil Appeals, of Fifth Supreme Judicial District.

Action by J. E. Earnest & Co. against J. P. Word to recover premiums allegedly due on insurance policies. Judgment for the plaintiff was reversed and judgment was rendered for the defendant, 129 S.W. 2d 833, and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and cause remanded.

Touchstone, Wight, Gormley, Strassburger & Price and Claude R. Miller, all of Dallas, for plaintiff in error.

Walter B. Branan, of Dallas, for defendant in error.

TAYLOR, Commissioner.

J. E. Earnest & Company, an insurance agency engaged in writing various kinds of insurance for the Commercial Standard Insurance Company and other companies, sued J. P. Word on a claim for premiums alleged to be due upon certain Commercial Standard policies. Upon conclusion of the evidence the trial court instructed a verdict for plaintiff and rendered judgment in its favor against the defendant. The Court of Civil Appeals reversed the judgment for plaintiff and rendered judgment in favor of defendant. See the opinion of the Court of Civil Appeals for a statement of the case. 129 S.W.2d 833, 837. The cause is before us upon writ of error granted plaintiff.

The Court of Civil Appeals makes the following statement after expressing opinion that the judgment of the court below should be reversed and judgment rendered for defendant: "However, if it can be correctly said that we are in error in reversing and rendering the judgment for the reasons stated, in such event, we think the cause should be reversed and remanded for further proceedings, because of the error of the court in refusing defendant's requested issue on the application of payments."

We are in accord with the action of the Court of Civil Appeals in reversing the judgment below, but not with its action in rendering judgment in defendant's favor.

We are in agreement with the Court of Civil Appeals that the effect of defendant's verified denial of the correctness of plaintiff's sworn account was to destroy the probative force of the itemized account attached to the petition and put plaintiff upon proof of its claim. See cases cited in its opinion; also Gustafson v. Zunker, Tex.Civ.App., 257 S.W. 1114; Walker-Smith Co. v. Watson, Tex.Civ. App., 271 S.W. 224 and Block v. Tarrant Wholesale Drug Co., Tex.Civ.App., 138 S.W.2d 874. The trial court erroneously admitted the copy of the sworn account in evidence over the objection that plaintiff's books were the best evidence; and, as stated by the Court of Civil Appeals, the trial court erred in refusing defendant's requested issue on the application of payments.

We are not in agreement, however, with the holding that the testimony of defendant is conclusive upon defendant's alleged agreement that plaintiff would give him a fifteen per cent premium rebate in order to get his insurance business.

Mr. Seastrunk, plaintiff's assistant secretary, testified substantially that in a prior suit (based upon the cause here involved but dismissed by plaintiff without trial upon the merits), there were negotiations concerning a fifteen per cent discount, but that the only record of it was a statement given "to Mr. Word in an attempt to settle this indebtedness"; that they "agreed * * *, after he had refused to pay, to settle for eighty-five cents on the dollar and when he still refused to pay we then sued him for the entire amount." He also testified as shown by the following question and answer:

"Q. You know they (plaintiff by its representatives) had agreed to give him (defendant) the fifteen per cent discount? A. My only knowledge of it was when we were attempting to settle the account."

The above testimony of Mr. Seastrunk is not conclusive as to whether the percentage in question was one of rebate or one to be allowed in order to effect a compromise settlement.

The question of rebate should have been submitted to the jury, and the trial court erred in granting plaintiff's motion for an instructed verdict.

The Court of Civil Appeals states that plaintiff neither alleged nor proved it was a party or privy to the insurance contracts, or that they were made for its benefit, or that plaintiff was subrogated to the rights of the insurance company against the defendant, or that plaintiff was entitled to sue defendant in its own right to collect the premiums due on the policies.

We do not find it necessary, in view of the error pointed out above, to determine whether the evidence fails to show plaintiff has such an interest in the...