Trinity Universal Ins. Co. v. Patterson

• Decision Date: 17 August 1978
• Docket Number: No. 1154,1154
• Citation: 570 S.W.2d 475
• Court: Texas Court of Appeals
• Parties: TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. W. F. PATTERSON, d/b/a Patterson Insurance Agency, Appellee.

Page 475

570 S.W.2d 475

TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. W. F. PATTERSON, d/b/a Patterson Insurance Agency, Appellee.

No. 1154.

Court of Civil Appeals of Texas, Tyler.

Aug. 17, 1978.

Gary W. Maxfield, Elliott, Churchill, Hansen, Dyess & Maxfield, Dallas, for appellant.

J. E. Jackson, Carthage, for appellee.

MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, W. A. Patterson, d/b/a Patterson Insurance Agency, brought suit on a sworn account seeking to recover past due insurance premiums against Mrs. F. M. Tindall, individually and as independent executrix of the Estate of F. M. Tindall, deceased, d/b/a A & M Plumbing and Electric Company (A & M Plumbing) and Defendant, Trinity Universal Insurance Company (Trinity Universal). Insofar as Defendant A & M Plumbing is concerned, the record is incomplete and shows only that a summary judgment was entered against it for the sum of $10,042.04 with interest thereon at the rate of 6% Per annum from and after January 1, 1964. The judgment recites that the cause against Defendant Trinity Universal was to continue on the docket. A & M Plumbing has not perfected an appeal and as a result the judgment against it became final. Defendant, Trinity Universal, answered the Plaintiff's petition with a general denial and a motion for summary judgment. Thereafter, Plaintiff filed a motion for summary judgment against Trinity Universal. After a hearing on the motions the trial court granted Plaintiff's motion and entered a summary judgment against Trinity Universal for the sum of $18,439.39, reciting that such sum included the "account of $10,042.04 and interest to date of judgment in the amount of $8,397.35." Defendant, Trinity Universal, duly perfected this appeal.

We reverse and remand.

The record reveals that the Plaintiff was in the insurance business and over the years had supplied A & M Plumbing with workmen's compensation and liability insurance on open account. According to the sworn account attached to the Plaintiff's petition, the account was opened on January 1, 1956, and was closed on February 1, 1963. During this period of time more than two hundred debits and credits are shown to have been entered on the account. The sworn account shows that as of February 1, 1963, the balance due and owing to the Plaintiff amounted to $10,042.04. Although the Plaintiff's petition does not allege that Trinity Universal contracted for purchase of any of the insurance policies listed in the account, the affidavit attached to the account is in the conventional form and recites, among other things, that the account is the account of both A & M Plumbing and Trinity Universal and that the same is just and true and that all lawful offsets have been allowed.

Although Plaintiff joined Trinity Universal as a party to the action on sworn account, the real basis of Plaintiff's claim against Trinity Universal arises out of a certain performance and payment bond executed by Trinity Universal guaranteeing payment to all persons who supplied labor, "services," etc., to A & M Plumbing on a subcontract which the latter undertook to perform for Temple Associates, a general contractor engaged in the construction of a building for Texas A & M University. Under the terms of the subcontract A & M Plumbing was required to carry workmen's compensation and liability insurance. Plaintiff alleged that he furnished policies covering A & M Plumbing during the time it performed the subcontract and that the premiums thereon amounted to $10,042.04, which A & M Plumbing failed and refused to pay.

Plaintiff alleged that since Trinity Universal guaranteed payment to all persons furnishing "services" to A & M Plumbing, Trinity Universal became liable to him for the "services" he performed in furnishing the insurance policies to A & M Plumbing during the time it attempted to perform the subcontract.

The evidence shows that A & M Plumbing defaulted on its subcontract prior to completion and it became necessary for Trinity Universal to complete the job in accordance with its performance bond issued to Temple Associates, the general contractor.

Under the first point of error, Trinity Universal contends that the trial court erred in granting Plaintiff a summary judgment because Plaintiff's summary judgment proof failed to establish as a matter of law, insofar as Defendant is concerned, the genuineness of the sworn account or the amount thereof. We sustain this contention.

Apparently, the trial court construed the Plaintiff's cause of action against Trinity Universal as a suit on a sworn account since the judgment recites ". . . that the sworn account contained in Plaintiff's pleadings has not been denied under oath . . .."

The sworn account attached to Plaintiff's petition was directed to A & M Plumbing Company. Although the affidavit attached to the account recites that the attached account was against both Trinity Universal and A & M Plumbing, the pleadings, as well as the Plaintiff's brief, make it clear that Trinity Universal had no contractual relationship with the Plaintiff in purchasing the insurance policies. The record clearly shows that the contract for the insurance policies was between Plaintiff and A & M Plumbing. Therefore, no debtor-credit relationship existed between Plaintiff and Trinity Universal. Thus, even though the account was verified, it was hearsay as to Trinity Universal which was a stranger to the transaction between the Plaintiff and A & M Plumbing. McCamant v. Batsell, 59 Tex. 363 (1883); Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App. Austin 1967, writ ref'd n. r. e.). Inasmuch as Trinity Universal was a stranger to the transaction between Plaintiff and A & M Plumbing, Trinity Universal was not obligated to file a written denial under oath. Robertson v. Rexall Drug and Chemical Company, 410 S.W.2d 200 (Tex.Civ.App. Fort Worth 1966, no writ history); Nichols v. Acers Company, supra; Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App. Corpus Christi 1968, writ ref'd n. r. e.); 1 Tex.Jur.2d Accounts & Accounting sec. 71, p. 321, Upon applying the foregoing rules of...