Phelps v. Twin City Fire Insurance Company, 7328
| Decision Date | 03 February 1972 |
| Docket Number | No. 7328,7328 |
| Citation | 476 S.W.2d 419 |
| Parties | Billye Sue PHELPS, Appellant, v. TWIN CITY FIRE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Seale & Stover, Jasper, for appellant.
Wm. Drew Perkins, Lufkin, for appellee.
Appellant, plaintiff below, sued appellee under the provisions concerning uninsured motorists. She alleged:
The policy in question includes under 'uninsured automobiles' a 'hit-and-run automobile.' This is defined in the policy as follows:
"(h)it-and-run automobile' means and automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile'; (b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (c) at the company's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.'
Trial was to a jury which found that the truck did not stop, its identity could not be ascertained, and its driver failed to keep the truck completely within the right half of the highway which was 'a proximate cause of the occurrence in question.'
Plaintiff was absolved of all contributory negligence but in answer to the issue, 'Do you find from a preponderance of the evidence that on November 27, 1970, a truck collided with plaintiff's automobile?', the jury answered, 'We do not.'
On this basis, the trial court entered judgment for the defendant and that plaintiff take nothing.
Plaintiff urges: (1) 'The trial court erred in giving any consideration to the jury's answer to Special Issue No. 1 because a collision with a hit and run vehicle is not a prerequisite to recovery by the plaintiff in this case'; (2) because a 'requirement of physical contact with a hit and run automobile is so against public policy it should not be enforced'; (3) there is no evidence to support the jury's answer to this issue; and (4) the jury's answer is 'against the...
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