Mutual Fire & Auto. Ins. Co. v. Green, 15199

• Court: Texas Civil Court of Appeals
• Writing for the Court: McDONALD
• Citation: Mutual Fire & Auto. Ins. Co. v. Green, 235 S.W.2d 739 (Tex. Ct. App. 1950)
• Decision Date: 15 December 1950
• Docket Number: No. 15199,15199
• Parties: MUTUAL FIRE & AUTO. INS. CO. v. GREEN.

Page 739

235 S.W.2d 739

MUTUAL FIRE & AUTO. INS. CO. v. GREEN.

No. 15199.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 15, 1950.

Rehearing Denied Jan. 19, 1951.

John Touchstone and George C. Cochran, both of Dallas, for appellant.

Frank Massey, of Fort Worth, for appellee.

McDONALD, Chief Justice.

This suit involves two separate and unrelated claims on a policy of automobile insurance. In a non-jury trial judgment was rendered in favor of appellee Green, the owner of the automobile, on both claims, and the insurer has appealed.

Appellee's automobile was covered by a policy of insurance issued by appellant. The coverage included what is commonly known as public liability and property damage, designed to protect the insured from claims for personal injuries and property damage made by third persons, and what is commonly known as $100 deductible collision, protecting the insured from damages done to his own car over and above the sum of $100, and also what the parties refer to as the medical payment coverage. These are common forms of insurance and need not be more fully described, except in the particular details hereafter set out.

On April 23, 1949, appellee's automobile was involved in a collision with another automobile in the State of Mississippi. Appellee reported the accident by long distance telephone to the agent of appellant in Fort Worth, Texas, who had sold the policy to appellee, and this agent in turn reported the accident to the home office of appellant in Dallas, Texas. Before noon of the same day an insurance adjuster in Jackson, Mississippi, got in touch with appellee at the latter named place and made an investigation of the collision.

Appellee left his automobile in a garage in Jackson, Mississippi, and proceeded by bus to his destination in the State of Florida. Within a few days he returned to Jackson, and immediately after arrival there was told by the insurance adjuster that he had been sued by the owner of the other automobile and that appellee's automobile had been attached. The adjuster told appellee that appellant denied liability for the damages done to the third party because appellee was towing a trailer behind his automobile, in violation of the terms of the policy. Appellee thereupon employed an attorney, and compromised the claim of the third party by paying him the sum of $355.

Appellee then returned to Fort Worth, and filed a proof of loss with appellant's Fort Worth agent for the damage done to appellee's automobile, under the $100 deductible collision coverage of the policy. After some negotiations between them, appellee and the Fort Worth agent agreed on the sum of $225. as a settlement of the collision claim, appellant paid appellee that amount, and appellee executed a release reading as follows:

'Claim No. 670

'Policy No. 21203 AX

'Mutual Fire and Automobile Insurance Company

'Dallas, Texas

'Release

'The undersigned, Archie C. Green, of the City of Fort Worth, County of Tarrant, State of Texas, hereby acknowledges receipt of the sum of Two Hundred Twenty-Five Dollars ($225.00) paid to him by the Mutual Fire and Automobile Insurance Company on this date, and does hereby acknowledge that said sum is in full settlement and discharge of any and all amounts due to undersigned under Policy No. 21203 AX on account of an accident which occurred on or about the 23rd day of April, 1949, at or near Jackson, Mississippi, at about 4:00 o'clock A. M. Undersigned was driving his automobile East on Highway #80 and collided with a 1940 Chevrolet owned and driven by T. G. Beckham.

'This release is given in conjunction with Proof of Loss dated May 16, 1949, wherein acknowledgment is made of receipt of $225.00. This release is attached to and made a part of said Proof of Loss and is concurrent therewith. It is the intent of this release to absolve the Mutual Fire and Automobile Insurance Company from any and all claims, of any nature whatsoever, in connection with said accident, and that said amount of $225.00 is the consideration for both the Proof of Loss and this release.' Appellee's automobile was again damaged in an accident in December of 1949, which we shall discuss later in the opinion.

The first claim asserted by appellee in this suit is for reimbursement of the sum of $355 which he paid in settlement of the claim made against him by the owner of the other automobile involved in the Mississippi collision. Judgment was rendered in favor of appellee on this claim, and appellant complains of the judgment under seven points of error under which it makes the following contentions: (1) and (2) Appellee settled and compromised with appellant any claims he may have had under the policy, arising out of the Mississippi accident, and released same. (3) There was no liability under the policy because appellee was towing a trailer, contrary to a provision in the policy. (4) Appellee did not turn over to appellant, as required by the policy, the summons served on appellee in the Mississippi suit. (5) Appellee voluntarily settled the Mississippi suit without giving appellant an opportunity to defend it. (6) There was no proof that $355 was a reasonable amount to pay in settlement of the suit. (7) There was no proof that appellee was liable for the damages sustained by the owner of the other automobile.

Both appellee and appellant's Fort Worth agent testified that the proof of loss filed with the latter pertained only to the claim, under the collision coverage, for damages done to appellee's automobile. The agent said that he did not attempt to settle the claim pertaining to the damages done to the other automobile in Mississippi, that he understood that he had no authority or duties with respect to the latter claim, and that he understood that the latter claim was being handled by the adjuster in Mississippi. He said that the amount of the settlement he and appellee agreed on was arrived at by obtaining estimates of the cost of repairing the damages done to appellee's automobile. The proof of loss was not in evidence, the testimony being that a search had been made for it in appellant's office but that...