Southland Life Ins. Co. v. Ballew

• Decision Date: 17 December 1924
• Docket Number: (No. 6818.)
• Citation: 268 S.W. 1027
• Parties: SOUTHLAND LIFE INS. CO. v. BALLEW.
• Court: Texas Court of Appeals

268 S.W. 1027

SOUTHLAND LIFE INS. CO. v. BALLEW.

(No. 6818.)

Court of Civil Appeals of Texas. Austin.

December 17, 1924.

Rehearing Denied January 21, 1925.

Appeal from Erath County Court; A. P. Young, Judge.

Action by R. L. Ballew against the Southland Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, and case remanded for new trial.

R. L. Thompson, of Stephenville, for appellant.

Chandler & Pannill, of Stephenville, for appellee.

BAUGH, J.

Appellee sued the appellant for $800.69, claimed by him as commissions on life insurance policies obtained by him for said company in 1921. He based his cause of action upon a written contract executed by said company, acting through H. A. Witliff as its agent, and approved by J. Frank Montgomery, assistant secretary and agency manager for said company, which contract appointed him as agent and fixed his compensation. The case was submitted to a jury on special issues, and based upon their findings the court rendered judgment for plaintiff for $800.69, interest and costs, from which judgment this appeal is prosecuted. Further facts pertinent to the issues raised will be discussed in connection with such issues.

Opinion.

Appellant asserts error of the trial court under sixteen propositions of law based upon its assignments. The first two of these complain of the action of the trial court in overruling appellant's special exceptions to appellee's petition. There was no error in this. We do not deem it necessary to set out the pleadings here. Suffice it to say that plaintiff's petition fully set out his asserted cause of action, and was amply sufficient as against the exceptions urged. Not only was the contract fully pleaded, but a copy was attached by reference, and the contract upon its face clearly appears to be that of the company.

Appellant's propositions 3 to 10, inclusive, all complain of the action of the trial court in refusing to submit to the jury various special issues requested by appellant setting forth its defenses. We do not deem it necessary to set out the contract in controversy in full, nor to state all its provisions. There was no dispute as to its contents. The first paragraph of this contract reads as follows:

"The State of Texas, County of Dallas.

"This agreement entered into this the 1st day of January, A. D. 1921, by and between the Southland Life Insurance Company, of Dallas, Tex., party of the first part, acting herein through H. A. Witliff, doing business as H. A. Witliff, manager, Central Texas Agency; and R. L. Ballew of Stephenville, Tex., Erath county, party of the second part, witnesseth."

Then followed the provisions for payment by "said party of the first part" to Ballew of the commissions sued for, and numerous other provisions not pertinent here. Said contract was signed as follows:

"Witness our hands in triplicate, the day and date above written at Dallas, Tex. Southland Life Insurance Company by H. A. Witliff, Mgr. Central Texas Agency. R. L. Ballew, Agent.

"Countersigned by J. Frank Montgomery, Asst. Secy. and Agency Manager."

In addition to a general and special denial defendant, appellant here, pleaded that said contract was not its contract, but the contract of H. A. Witliff, and that, if there was any liability thereunder, it was plaintiff's liability, not the company's; that Witliff, if he did make such contract for said company, had no power nor authority to make same nor to bind the defendant; and, further, that the said J. Frank Montgomery had no authority, express or implied, to employ Ballew as agent for appellant, and that his countersigning the contract was not binding on the company. This answer was not sworn to.

Clearly this answer comes within the provisions of article 1906, Revised Statutes 1911, which reads as follows:

"An answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit: * * *

"8. A denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed."

Not having complied with the statute requiring his special defenses pleaded to be verified, the appellant was not entitled to have them submitted as special issues, and the trial court did not err in refusing to do so. City Water Works v. White, 61 Tex. 536; Loan Co. v. Nall (Tex. Civ. App.) 36 S. W. 322; Smith v. Smith (Tex. Civ. App.) 200 S. W. 540; Harris v. Wheeler (Tex. Civ. App.) 255 S. W. 206. A different question would have been presented had appellant's answer been properly verified.

Appellant's propositions 11 to 16 all complain of the special issues submitted to the jury. These special issues and the jury's answers thereto were as follows:

"(1) State the amount, if anything, that T. L. Ballew is entitled to recover from the defendant."

To which the jury answered: "$800.69."

"(2) In estimating the amount he is entitled to recover, if anything, you will determine whether the notes which were delivered to the Gustine State Bank by the insurance company were sold by the insurance company to said bank, or whether said notes were sent to said bank by said insurance company for collection, and, if they were sold to said bank, then plaintiff would be entitled to recover from defendant 20 per cent. of the amount of the principal of said notes, and, if sent to said bank for collection, the plaintiff would be entitled only to 20 per cent. of the amount of the principal of said notes collected by said bank."

To which the jury answered: "According to the...