Southwestern Fire & Cas. Co. v. Kendrick

• Decision Date: 01 July 1955
• Docket Number: No. 15636,15636
• Citation: 281 S.W.2d 344
• Court: Texas Court of Appeals
• Parties: SOUTHWESTERN FIRE & CASUALTY COMPANY, Appellant, v. Lester KENDRICK, Appellee.

Page 344

281 S.W.2d 344

SOUTHWESTERN FIRE & CASUALTY COMPANY, Appellant, v. Lester KENDRICK, Appellee.

No. 15636.

Court of Civil Appeals of Texas, Fort Worth.

July 1, 1955.

Cantey, Hanger, Johnson, Scarborough & Gooch, William B. David and David O. Belew, Jr., Fort Worth, for appellant.

Joe Spurlock and Kelly Jacobs, Fort Worth, for appellee.

BOYD, Justice.

Appellant Southwestern Fire & Casualty Company issued to appellee Lester Kendrick its Texas Standard policy of insurance on appellee's Buick automobile. The automobile was damaged in a collision on October 3, 1954, and appellee expended the sum of $45 in towing the automobile and the sum of $349.88 in repairing it. Judgment was rendered for the towing and repairing charges, less $50, as provided in the deductible clause. At the time of the collision the policy was in force, unless, as claimed by appellant, it had been previously cancelled.

Appellant pleaded that the policy had been cancelled by appellee, and, in the alternative, that it had been cancelled by mutual consent of the parties. Appellant alleged that Paul Squires was the agent of appellee, and was authorized to and did surrender the policy to appellant for cancellation.

The jury answered 'No' to the issue as to whether Squires was acting as appellee's agent in returning the policy to appellant, and found that appellee did not vountarily consent to the cancellation of the policy.

Appellant's points for reversal are that the court erred in overruling its motion for instructed verdict on the ground that the evidence was uncontradicted that the policy had been cancelled by appellee, and that the evidence was uncontradicted that the policy had been cancelled by mutual consent. Its other point is that it was error to render judgment for the $45 towing charge.

Although the policy provided that it might be cancelled by the Company by giving appellee ten days written notice, it is not here contended that the Company cancelled the policy under that provision. It further provided that it 'may be canceled by the Named Insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancellation shall be effective.' Appellee did not physically surrender the policy, and no such 'written notice' was ever mailed.

Squires held a mortgage on the automobile, and the policy was payable to him as his interest might appear. The insurance was procured at the instance of Squires. He alone contacted appellant about issuing the policy, and it was delivered to him, with a certificate being sent to appellee. The premium was paid by Squires, and that amount was added to the loan and included in the note which appellee gave to Squires. On September 21, 1952, appellant's agent advised Squires by telephone that appellant desired to cancel the policy. On September 28, 1954, Squires told appellee that appellant desired to cancel the policy. Squires testified that he told appellee that the Company "wants to get off of this policy, they want to cancel it out. I guess that's what we will have to do.' As I recall, I said, 'Is that O.K. with you?' and Les, as I remember, he said it was all right.' Appellee did not request Squires to have the policy cancelled.

Appellee testified that Squires told him that the Company was going to cancel the policy. He further testified, 'I didn't say nothing. Wasn't nothing for me to say. Q. Didn't say anything? A. No, wasn't nothing for me to say, if they were going to do it.' He said that he was going to try to secure other insurance when he 'found out for sure it was going to be cancelled;' he testified that Squires did not tell him when the Company would cancel the policy. Nobody testified that appellee told Squires to surrender the policy to the Company, and appellee testified that he did not tell him to do so.

Through the same agent, but from another company, Squires secured another policy of insurance on the automobile, which policy did not cover collisions. It is not shown that appellee authorized...