United Services Automobile Ass'n v. Zeller , 135 S.W.2d 161 ( 1939 )

On Motion for Rehearing.

In the third ground of its motion for rehearing appellant for the first time makes the contention that, because the policy involved was delivered to the insured within territory previously ceded to the United States Government by the State of California, the relevant laws of that State cannot be applied in the enforcement of the terms of the policy. The contention, raised for the first time on motion for rehearing, comes too late for consideration in this Court. Moreover, even if the contention had been timely made, and were good, it is not -decisive here, since the judgment must be, and has been, affirmed for other reasons.

Under its eighth ground in its motion for rehearing, appellant presents for the first time its proposition that Junior was not an additionally assured under the policy, because he violated a penal code of California in driving the car on the occasion of the accident without a driver’s license, and therefore was not “legally operating” the car within the provision of the policy extending coverage to any person “legally operating said automobile with the permission of the subscriber.” No statement of fact or reference to this matter was made by appellant under any appropriate assignment of error or proposition in its brief, as required by rule 31 for the Courts of Civil Appeals, and therefore, this proposition made for the first time in appellant’s motion for rehearing presents no question for consideration of this Court.

Under appellant’s ninth ground m its motion, it complains that the court erred in not holding inadmissible the testimony of Max Wier as to confidential communications. The proposition in appellant’s brief presenting this question was not supported by an appropriate assignment of error. The proposition is found on page 34 of appellant’s brief, and though it was stated that this was germane to assignments 3 and 19, an examination of those assignments discloses nothing pointing out this specified error, and therefore, even if the proposition presented error, it would not require reversal.

Appellant’s motion will be overruled.