Murray v. Brazzel, 4706
| Decision Date | 06 February 1969 |
| Docket Number | No. 4706,4706 |
| Parties | Sid MURRAY et al., Appellants, v. John BRAZZEL, Appellee. . Waco |
| Court | Texas Court of Appeals |
Fischer, Wood, Burney & Nesbitt, Allen Wood, Corpus Christi, for appellants.
Butler, Binion, Rice, Cook & Knapp, William E. Wright, Houston, for appellee.
Plaintiff-appellee Brazzel recovered judgment against Sid Murray, his wife and the Sid Murray Agency for over $200,000 actual and exemplary damages in a jury trial. The subject matter of the suit is Brazzel's claim for agent's renewal commissions, which he contends he is entitled to from his sale of insurance while a salesman for the Murray Agency, aftr termination of his employment.
Brazzel's petition alleged three counts: (1) the breach of his 1948 written agency contract with the Murray Agency; (2) an action, as he says, 'based upon promissory fraud or deceit arising from misrepresentations originally made in 1946 and repeated continually until termination' of his employment in 1963; (3) an action based on alleged wrongful termination by Murray in 1963.
We look first to determine whether the 1948 contract, the interpretation and alleged breach of which is regarded by the parties as of cardinal import in consideration of the other two counts, will support recovery. Excerpts from the portions of the contract which are deemed material to this appeal are quoted in the footnote. 1
Appellee relies on a 'finding' by the trial court that the 1948 contract provides for vested renewal commissions irrespective of termination of employment. He argues this 'finding' is unassailed by appellants. In a jury case the trial court is not authorized to make findings other than those specified in Rule 279, Texas Rules of Civil Procedure. Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219, 220; see authorities cited, Sears, Roebuck and Company v. Coker, Tex.Civ.App., 428 S.W.2d 710, syl. 1, writ ref. n.r.e. Consequently we do not, as appellee urges, treat the court's conclusion of law procedurally as constituting such a finding. From its 139 points appellants present 26 pertaining to the 1948 contract, its construction and effect; and they have effectually preserved their attack on this basis of recovery.
Appellee concedes the 1948 contract was not induced by fraud. He states it is unambiguous, and correctly expresses the agreement of the parties. The issue narrows to whether the contract entitles Brazzel to renewal commissions after termination of the contract. The contest over this question, in our opinion, obscured the real issue on the contract aspect of the case, and resulted in trial and submission on an erroneous theory.
The record shows the Murray Agency was engaged in selling 'association' insurance to members of organizations such as the State Bar of Texas, engineering, accounting, medical and realtor organizations, whereby insurance was made available at lower 'wholesale' rates. Upon approval of an association, Murray obtained proposals from insurance companies, which, if acceptable to the association, were sold to members. Murray kept the association informed of the status of the insurance program, collected premiums and paid claims. Salesmen sold and serviced policies. These comprised disability income protection and major medical insurance.
According to Murray's testimony, in 1961 the major medical insurance had resulted in an excessive loss which would have required a change in coverage or an increase in premium, whereas the income protection business resulted in a profit. It was considered that change in coverage or increase in premium would result in withdrawal of sponsorship by the associations; Murray 'could not find any insurance company that was willing to take over the major medical insurance'; and the initial company would not continue the program without reduction in coverage or substantial premium advance .
Murray induced Mutual of New York in 1963 to replace all association insurance, both medical and income protection. The initial company 'did not want the business' on this basis, and it was necessary to find a company which 'would take the bad business'. The new company, under this replacement plan, however, refused to exchange policies and all old policies were cancelled; a group plan was developed by which a master contract was issued to the associations and individual certificates issued to insured members. The plan included reducing loss experience by improved underwriting and modified certificate provisions. Thereafter the original policies 'were not on Murray's books', but the original policy holders held certificates under the new group, or master policy agreement issued by MONY.
Murray terminated the 1948 contract in March, 1963. It was not terminated as a result of termination of the agency agreement as referred to in paragraphs 12 and 13 of the 1948 contract. Notice of termination by Murray to Brazzel preceded notice of termination of the agency agreement.
In the wake of voluminous evidence to this general effect, the court submitted without objection by appellee, a special issue inquiring whether Murray recommended 'without good cause', that the associations transfer their income protection plans to Mutual Life Insurance Company of New York. The jury answered, 'No'. There is another jury finding to the effect that Murray intended that the MONY insurance would be a 'replacement' of the existing policies. There were numerous other evidentiary findings, and others which we consider immaterial.
We come now to apply the terms of the contract.
By paragraph 13 either party is given the right to terminate after notice. Does Brazzel's right to compensation end with termination? The contract answers this question in the negative, as will be seen; but the right to renewal commissions ended with termination. The latter, by the clear terms of paragraph 4, Brazzel was to receive 'so long as this contract shall remain in force and unchanged'. When it ceased to be 'in force and unchanged' by exercise of the right of termination under paragraph 13, Brazzel's rights became determinable by the provisions of the latter paragraph.
Brazzel's rights and measure of recovery and Murray's obligation upon termination, as delineated under paragraph 13, are that Brazzel is to receive and Murray 'does agree to pay the salesman the reasonable and customary price for his business'.
Neither the contract, the pleadings, the testimony nor the verdict furnishes a basis or formula from which judgment may be rendered for 'the reasonable and customary price' payable for business attributable to Brazzel, and we are not authorized to devise one. Appellant's points complaining of the measure of damages submitted are sustained. That measure is fixed by the contract. The quantum of damage under the contract is a question for the fact finder, which has not yet made a finding.
There are jury findings as...
To continue reading
Request your trial
-
Wendell v. Central Power and Light Co.
...jury find support in the pleadings. McFadden v. Hale, 615 S.W.2d 345 (Tex.Civ.App.--Waco 1981, no writ); Murray v. Brazzel, 438 S.W.2d 382 (Tex.Civ.App.--Waco 1969 writ ref'd n.r.e.). Therefore, appellants in our case sought leave of court to amend their pleadings to conform to the evidence......
-
City of Willow Park v. Bryant
...after a jury trial--see Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219, 220 (1958), and Murray v. Brazzel, 438 S.W.2d 382, 384-85 (Tex.Civ.App.--Waco 1969, writ ref'd n.r.e.), even assuming arguendo such findings were properly entered, we can find no evidence in the record that......
-
Freitas v. Twin City Fisherman's Co-Op. Ass'n
...Rules 277, 279, T.R.C.P. Matthews v. General Accident Fire & Life Assurance Corp., Ltd., 161 Tex. 622, 343 S.W.2d 251; Murray v. Brazzel, Tex.Civ.App., 438 S.W.2d 382, 386, wr. ref. n.r.e. If objection is made to their submission because of lack of pleading, answers to such issues will not ......
-
Brazzel v. Murray
...Court) reversed the trial court judgment and remanded the cause for new trial with costs assessed against Brazzel on February 6, 1969. 438 S.W.2d 382. Judgment became final November 26, 1969 when Brazzel's application for writ of error was overruled by this The Clerk of the Waco Court issue......