Employers' Casualty Co. v. Harris , 1926 Tex. App. LEXIS 484 ( 1926 )

COBBS, J.

Appellant filed this suit in justice court of Dallas county against ap-pellee, to recover $134.85, alleged to be due on a policy of insurance written for appellee but subsequently canceled by him. The suit was instituted by oral pleadings of both parties, and tried with a jury, and a judgment was rendered in favor of plaintiff for $74.91. The case was appealed to the county court and tried without a jury on oral pleading, and a judgment was again rendered for appellant in the sum of $74.91.

The right of either party to cancel is provided for in the policy itself, to wit:

“Condition H. This policy may be canceled by the company at any time by written notice to the assured, stating when the cancellation shall be effective. It may be canceled by the assured by like notice to the company. If canceled by the company, the company shall be entitled to the earned premium, pro rata, when determined. If canceled by the assured, the company shall be entitled to the earned premium; calculated at short rates, in accordance with the table printed on the back of this policy. The check of the company, or that of its agent or representative, mailed to the address of the assured as given herein, shall be sufficient tender of return premium.”

The main controversy here is as to the rate and the amount due by appellee on the policy; the plaintiff contending at the time of cancellation the sum due was $134.85. The contention of appellee was that, because the premium was higher than he understood it to be, he had the right to cancel on the pro rata basis of the premium for the length of time it had been in force. To this the plaintiff replied defendant had ratified and affirmed the insurance contract by retaining the same in his possession; because plaintiff became liable under the terms of the policy of insurance, same being in his possession, such liability was a benefit to appellee, which would work an estoppel and estop the defendant from denying that any of the, conditions of the policy applied as to him.

The court passed upon all the questions raised and as to the amounts that would fall due appellant in respect to the rates earned. The court had all the evidence before it, pro and con. However, the appellant contends that the court erred in not filing its findings of fact and conclusions of law, because there was a conflict of evidence. Garrow, MacClain & Garrow, Inc., v. Texas & N. C. E. Co. et al. (Tex. Civ. App.) 273 S. W. 277.

There was no statement of facts filed. The judgment was rendered on February 13, 1925. Immediately thereafter appellant made the demand for the court’s findings, whereupon appellee at once prepared the same, giving the original to the court and supplying counsel for appellant with a copy thereof. The court, beliéving the time expired for filing on the 6th of April, 1925, approved and filed the same on that date, being a day later than the statute specified, and 10 days after the adjournment of the court. The findings and conclusions were therefore in the hands of the court and that of appellant for 60 days or thereabouts.

In approving the bill of exceptions, the court indorsed thereupon “that the court had calculated that the last day for the filing the findings of fact and conclusions of law April 16th.”

It is very clear from the facts of this case, except technically, the appellant was deprived of no valuable right in understanding upon what theory the trial court disposed of the issues of ratification and estoppel and as to the theories or issues on which judgment was rendered against it. It is copied in the transcript without objection on the part of appellant. So appellant was fully apprised at the time of making its bill of exceptions and at the time of assigning errors on the court’s findings both of fact and law, and knew precisely upon what to rely, in taking its appeal; in other words, has had the same benefit as if it had been filed on time. No prejudicial injury is shown to be done by the action of the court in not filing within the specified time. There is no such harmful error committed as will require a reversal of this case for that reason. G., H. & S. A. Ry. Co. v. Stewart (Tex. Com. App.) 257 S. W. 526.

Under the facts of this case, the court having filed its findings, it does not appear that appellant was deprived thereof or injured thereby, but it does affirmatively appear that he was not.

This case having been fairly tried and substantial justice done, the judgment is affirmed.