Sentinel Fire Ins. Co. v. Anderson
| Decision Date | 23 September 1946 |
| Docket Number | No. 5720.,5720. |
| Citation | 196 S.W.2d 649 |
| Parties | SENTINEL FIRE INS. CO. v. ANDERSON. |
| Court | Texas Court of Appeals |
Appeal from Hockley County Court; Z. O. Lincoln, Judge.
Suit by A. D. Anderson against the Sentinel Fire Insurance Co. to recover on an automobile collision policy. From a judgment for plaintiff, defendant appeals.
Reversed, and remanded.
Simpson, Clayton & Fullingim, of Amarillo, for appellant.
Allison & Chandler, of Levelland, for appellee.
Appellee instituted this suit against the appellant to recover upon a policy of insurance issued to him by the appellant, in which the appellant agreed to insure appellee against loss or damage to his automobile by collision or upset. He alleged that on the 10th of January, 1946, and while the policy was in force and effect, and while driving upon the highway, his car skidded and overturned, resulting in damage thereto in the amount of $313. The policy contained a provision for a deduction of $50 and appellant sought to recover the full amount of his damages, less the deductible $50.
Issues as indicated by the following discussion were drawn and the case was tried before the court without the intervention of a jury. The trial resulted in a judgment in favor of the appellee for $263, being the amount sued for by him, from which appellant has perfected this appeal.
The record shows that immediately after the accident the appellee went to the office of the appellant's adjuster at Lubbock and reported it to him. The adjuster presented appellee with a proof of loss, which appellee signed and the adjuster then took up negotiations with the operators of three garages or machine shops and procured from each of them estimates as to the cost of repairing the automobile. In one of these estimates, the Cactus Body & Paint Shop agreed to make the repairs for $180.80. In another, the B. & B. Body Works agreed to make them for the sum of $243.99, and in the third estimate the Lubbock Auto Company agreed to make the repairs for the sum of $313. At the time the estimates were procured, appellee's automobile was in the garage of the Lubbock Auto Company. The parties agreed that the estimate or bid of the Cactus Body & Paint Shop, being the lowest of the three, would be accepted and they instructed its employees to procure the car from the Lubbock Auto Company and proceed with the work. After it was taken to the Cactus Shop, appellee and his father went to the shop and for some reason not fully shown, appellee decided he would prefer to have the repairs made at the Lubbock Auto Company. He then had it removed from the Cactus Shop to the shop of the Lubbock Auto Company, where the repairs were made, for which appellee paid the Lubbock Auto Company the sum of $313. He presented the bill to A. O. Garner, appellant's agent and adjuster, for payment, which was refused and appellee thereupon filed this suit.
The principal controversy has reference to the proof of loss and purported agreement of settlement, which were signed by the appellee in the office of the adjuster shortly after the accident. The agreement of settlement, or receipt, recites the essential facts concerning the accident, the issuance and existence of the policy of insurance and that the loss had been adjusted for the sum of $130.80. It then mentions an interest of the Southwestern Investment Company by virtue of a mortgage held by it on the automobile and directs payment of the agreed sum to the appellee and the Southwestern Investment Company. The last portion of it constitutes an agreement that such payment shall fully discharge the appellant from any and all claims arising upon the policy by virtue of the damage caused to the automobile by the accident. It is on the same paper as the proof of loss and constitutes the last portion of the document signed by appellee, although the portion of it reporting the loss is signed separately, and above it.
Appellee contends that these documents were signed in blank by him before the estimates were procured from the repair shops and, therefore, were not binding upon him, while appellant contends they were completed and all blanks filled in prior to the time it was signed. Considering the agreement as valid and binding, appellant tendered to the appellee the amount called for thereby of $130.80 and also tendered the same into court at the trial. Appellee refused to accept the tender and contended he was entitled to recover the full amount of $313, less the deductible $50, which he had paid to the Lubbock Auto Company, and the court, evidently adopting his view, rendered judgment accordingly.
Appellant contends, first, that if the proof of loss and contract of settlement...
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...be presented in the case at bar. Home Mut. Ins. Co. of Iowa v. Stewart, 105 Colo. 516, 100 P.2d 159, 161; Sentinel Fire Ins. Co. v. Anderson, Tex.Civ.App., 196 S.W.2d 649, 652. There is a paucity, as well as a conflict [see 46 C.J.S., Insurance, Sec. 1195d(2), loc. cit. 134], of authority a......
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