Womack v. Allstate Ins. Co., 6548

• Decision Date: 27 December 1955
• Docket Number: No. 6548,6548
• Parties: Malcolm WOMACK et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 308

286 S.W.2d 308

Malcolm WOMACK et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 6548.

Court of Civil Appeals of Texas, Amarillo.

Dec. 27, 1955.

Rehearing Denied Jan. 30, 1956.

Casey Charness and Shaw & Daniel, Lubbock, for appellants.

Sanders, Scott, Saunders & Smith, Amarillo, for appellees.

NORTHCUTT, Justice.

Malcolm Everett Womack and his wife, Dorothy Womack, and James E. Cryer and his wife, Elouise Cryer, all as plaintiffs, brought a suit against William T. Coffee and another for damages because of an automobile collision that occurred on July 20, 1952. By said suit, Malcolm Womack and wife, Dorothy Womack, on June 23, 1953 recovered a default judgment against William T. Coffee for the sum of $2,850 and James E. Cryer and wife, Elouise Cryer, on June 23, 1953 recovered a default judgment against William T. Coffee for the sum of $350, both amounts aggregating the sum of $3,200. Appellants were unable to collect this judgment as against Coffee and brought this action against appellee to recover the $3,200 with interest from the date of the judgment alleging they were entitled to recover against appellee by virtue of an insurance policy issued by appellee covering the injuries sustained by appellants in the automobile collision above mentioned. Appellee filed its answer setting up numerous reasons why appellants were not entitled to recover against it. Thereafter, appellee filed its motion for summary judgment and, after proper hearing on said motion, the trial court entered summary judgment therein and, from this judgment, appellants perfected this appeal.

Appellants assigned as error on the part of the trial court in entering the summary judgment that there were genuine issues of material facts involved; that the motion for summary judgment was based on insufficient and improper affidavits; the trial court erred in not protecting appellants who were unable to secure affidavits to justify their opposition to appellee's motion for summary judgment in accordance with Rule 166-A(f), Texas Rules of Civil Procedure; that the trial court considered and did not strike improper evidence presented by appellee in its pleadings and motion for summary judgment; that the trial court erred in not allowing appellants a trial by jury on issues on whether any misrepresentations, if any, were in fact, made by appellee's insured, was material to the risk or actually contributed to the contingency upon which the policy became due and payable; that appellants were third-party beneficiaries of the contract of insurance herein sued upon and said contract became absolute under Texas Motor, Vehicle Safety-Responsibility Act, Vernon's Ann.Civ.St. art. 6701h, at a time prior to the accident out of which appellants' cause of action arose, and the trial court erred in holding, as a matter of law, the contract of insurance herein sued upon had been cancelled and was not in force at the time of the accident out of which appellants' cause of action arose.

In support of its motion for summary judgment, the appellee filed an affidavit made by oen Jack Walding. The affidavit began as follows:

'Comes now Jack Walding, a duly authorized representative of the Defendant Allstate Insurance Company, and makes known to the Court the following facts by affidavit:'

The affidavit then sets out the matters concerning the application for insurance, the issuance of the policy and the cancellation of the policy and attaches to said affidavit a true photostatic copy of the declaration and also a copy of the policy issued and letter on notice cancelling the insurance policy. There were copies of other instruments also attached to the affidavit but we do not deem it necessary to mention them as they did not affect this appeal. Jack Walding signed the affidavit and took the following oath:

'The State of Texas

County of Dallas ss.

'Before Me, the undersigned authority, on this day personally appeared Jack Walding, who being by me first duly sworn on his oath stated that the representations set out in the foregoing Affidavit are true.

'Sworn and subscribed to by the said Jack Walding before me on this 16th day of September, 1954.

(Seal)

/s/ Paul R. Breeding

Notary Public in and for Dallas County, Texas

Paul R. Breeding'

The main contention of appellants is that the trial court erred in granting appellee's motion for summary judgment because the motion was based on insufficient and improper affidavit contending that the affidavit made by Jack Walding was insufficient, improper and also not made on personal knowledge of affiant as required by Rule 166-A(e), Texas Rules of Civil Procedure which states:

'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'

Black's Law Dictionary, Third Edition, defines an affidavit as:

'A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.'

The same authority defines an oath as:

'An external pledge or asserveration, made in verification of statements made or to be made, coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a supreme being to witness the words of the party and to visit him with punishment if they be false.'

The distinction between an affidavit and an oath appears to be that an affidavit consists of a statement of facts which is sworn to as the truth while an oath is a pledge. The oath of Jack Walding stated on his oath that the representations set out in the affidavit were true. It was shown he was a duly authorized representative of the appellee, instruments were attached to the affidavit showing the truthfulness of the affidavit. Walding did not set forth information and belief or any other such statements that the things were true but when he stated on his oath, we think is the same as from his personal knowledge and that complies with the requirements of Rule 166-A(e) of Texas Rules of Civil Procedure. Tucker v. Neal Oil Corp., Tex.Civ.App., 255 S.W.2d 302.

It is the further contention of appellants under different sections of Articles 6701h and 6687b that they were thirdparty beneficiaries of the contract of insurance which contract became absolute under Texas Motor Vehicles Safety-Responsibility Act at a time prior to the accident out of which appellants' cause of action arose. There is nothing in this record to indicate that the insurance policy in question was issued according to the contentions made as to Article 6687b but, in fact, the application for the insurance policy in question is right to the contrary. There cannot be any question about either the insurance company or the insured having the right to cancel the insurance policy because the policy so provides and was a part of the contract. Of course, there would have been another question here involved if appellants had been injured while the contract of...