United Services Auto. Ass'n v. Tull

• Decision Date: 06 September 1978
• Docket Number: No. 15963,15963
• Citation: 571 S.W.2d 551
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Rosemary D. TULL, Appellee.
• Court: Texas Court of Appeals

Page 551

571 S.W.2d 551

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Rosemary D. TULL, Appellee.

No. 15963.

Court of Civil Appeals of Texas, San Antonio.

Sept. 6, 1978.

Rehearing Denied Oct. 18, 1978.

Reese L. Harrison, Jr., John H. Tate, II, Oppenheimer, Rosenberg, Kelleher & Wheatley, San Antonio, for appellant.

James G. Murry, San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is a suit by Rosemary D. Tull, appellee herein, against United Services Automobile Association, appellant, for alleged damages arising out of the termination of her contract of employment. For convenience, appellee will be sometimes hereinafter referred to as "Tull" and appellant as "USAA." Trial was to a jury who in answer to special issues submitted found: (a) USAA did not have good cause to discharge Tull; (b) Tull was entitled to receive $8,365.66 as loss of earnings; (c) Tull was entitled to recover a Christmas bonus of $433.39; (d) Tull was entitled to recover $25,000 for mental pain and anguish in the past; (e) the conduct of USAA in discharging Tull was an act of malice; (f) Tull was entitled to recover exemplary damages in the amount of $25,000. USAA timely filed motions for instructed verdict, judgment non obstante veredicto, and to disregard certain jury findings, all of which were overruled by the court. The trial court entered judgment that Tull recover from USAA the sum of $59,058.99.

Appellant brings forth 33 points of error. Many of these points of error assert that appellant is entitled to a judgment as a matter of law and seeks a reversal and rendition. Other points of error seek a reversal and remand.

We will first consider appellant's points of error which seek a reversal and rendition. It is appellant's primary contention that the employment relationship between USAA and Tull was an oral contract for an indefinite term containing no contractual limitations, and was terminable at the will of either party, with or without cause. USAA asserts that the trial court erred as a matter of law in not granting its motion for instructed verdict or its motion for a judgment non obstante veredicto; that there is no evidence to support the submission of and the jury's answer to the material issues upon which the verdict is predicated; and that although under the type of employment here involved it is immaterial whether Tull's termination was for good cause, as a matter of law there was good cause for her termination.

The evidence shows that USAA employed Tull under an oral employment contract without any definite term being established, which was its practice with all employees. Over a period of years, Tull was promoted from time to time through various grade levels. Tull admitted that from the day she was hired her employment agreement was a "decent day's work for a decent day's pay" and that from her standpoint she could have terminated her employment and left her employment at USAA at any time. ¹

As an employee, Tull was instructed and trained in her job duties and the rules and regulations of her employer, USAA. Included in this training and instruction were the categories of membership in USAA's insurance for which employees were eligible for many types of insurance offered by USAA. As an employee, Tull was eligible for USAA insurance coverage and had availed herself of these benefits by insuring her automobiles, her house, personal property, life, and other coverage.

By May of 1975, Tull had progressed to a management position and was authorized to issue insurance binders obligating USAA for insurance coverage for fire and extended coverage on dwellings up to a limit of $100,000 without seeking approval from higher authority. All employees were instructed that they were never to handle or write their own insurance and employees were instructed to contact the technical assistants in the appropriate branch who would handle their insurance needs.

In April of 1975, Tull as agent and attorney-in-fact for her father, Benedict J. Danysch, went to Falls City, Texas, and purchased for her father a small house. A warranty deed was given by the seller to Benedict J. Danysch and filed for record in Karnes County, Texas. After her return to USAA, Tull prepared and executed a "binder" in her name and USAA number and under her signature, insuring her father's house against fire and extended coverage and other perils for $5,000. The "binder" issued by Tull obligated USAA in the event of loss. Based on the binder, an insurance policy was issued.

During the summer and early fall of 1975, an underwriting risk review of all of Tull's insurance was initiated because of her high claims frequency and claims paid. Based on this risk review, a recommendation was made not to renew Tull's automobile coverage. Tull was notified by letter of the cancellation. Because of the automobile claims, a parallel risk review on other coverage was also undertaken and a recommendation was made that Tull's multiple lines coverage (like her house, personal property, and so on),...