Anderson Furniture Co. v. Roden , 1952 Tex. App. LEXIS 2321 ( 1952 )

PITTS, Chief Justice.

Appellees, Homer A. Roden and E. E. Manning, instituted this suit in July of 1950 against appellant, Anderson Furniture Company, for property damages caused about noon on .April 15, 1950, by reason of a fire which destroyed a duplex residence and the contents therein in Dallas County, and which resulted from the alleged negligence of appellant’s employees. In addition to the alleged actual damages by reason of the fire to the duplex owned by appellee Manning and the alleged loss of certain household goods and personal effects owned by appellee Roden, 'both appellees sought exemplary damages by reason of alleged gross negligence of appellant’s agents in their attempt to install a cooking range stove in the duplex without first cutting off the flow of natural gas.

Appellant answered by joining issues with appellees but thereafter ’ filed an amended answer claiming full settlement of the losses sustained by appellees with their respective insurance companies, Mercury Insurance Company and Fireman’s Fund Insurance Company, which companies, it alleged, had on June 15, 1950, executed releases relieving appellant of any further liability as a result of the fire in question. Appellees then im-pleaded the said insurance companies and their general agents and admitted the said companies had certain subrogation rights but charged that they had no authority to execute releases covering appellees’ uninsured losses. Appellees, respectively, sought recoveries against the said insurance companies respectively, if the said companies had exceeded their subrogation authority in executing releases to appellant covering uninsured losses. The insurance companies answered and admitted they had paid appellees, respectively, for the losses sustained only to the extent of the respective sums the respective policies indemnified appellees against losses and had settled with appellant for such limited subrogation sums only but had not settled with appellant for any uninsured losses claimed by appellees. They further pleaded, in effect, that appellant’s agents knew at the time of the settlements that such were made only for the subrogation claims and did not include additional claims being then made by appellees against appellant for uninsured losses ' sustained by appellees. This pleading put in issue the question of knowledge and intentions of the parties. Nowhere did appellant plead any grounds of recovery over and against the insurance companies.

The.’case was tried to a jury. At the close of the evidence the trial court instructed a verdict in favor of the insurance companies and their general agents, but submitted to a jury the issues raised by appellees against appellant. In connection with such instructed verdict the trial court found that appellant had not pleaded any grounds of recovery against the insurance companies. Based upon findings of the jury in answer to special issues, the trial court rendered judgment for both ordinary -damages and exemplary damages against appellant, Anderson Furniture Company, and for each appellee, from which judgment the said appellant has perfected its appeal. In order to equalize the dockets of the. Courts of Civil Appeals, the Supreme Court has transferred this case from the Dallas Court of Civil Appeals to this court;

Appellant has predicated its appeal upon 38 points of error but has grouped some of them for- presentation. All points are being considered by us, but we do not deem it necessary to discuss them numerically and separately.

.The merits of the issues presented concerning liability of the insurance companies and appellant’s liability for uninsured losses, if any, sustained by appellees depend upon the terms of two settlement agreements made by a representative of the insurance companies and appellant’s agent as well as upon a proper construction of certain releases executed to appellant by the respective insurance companies, together with parol evidence showing circumstances out of which their execution grew and those surrounding their adoption as well as the relationship of the parties thereto as is authorized in such matters by the 'Commission of Appeals in the case of Ryan v. Kent, 36 S.W.2d 1007, and numerous other authorities. Before considering such releases may we observe that appellant seeks to have us consider the contents of certain loan receipts, introduced in evidence over objections, executed by appellees, respectively, acknowledging payments, , respectively, by the insurance companies of the indemnifying sums, respectively, set out in the policies and the subrogation rights given by appellees, respectively, to the insurance companies, respectively, against appellant for the said sums. The record and the releases themselves reveal that the insurance companies in making the settlements exercised the authority given them under the terms of the policies and not the loan receipts. However, appellant seeks to make these loan receipts a part of the basis for its settlements in full of the claims in ^question. The evidence reveals conclusively, however, that appellant was in no way a party to the said loan receipts; that its agents knew nothing about their execution or existence until some seven months after the insurance companies had settled their subrogation rights with appellant and issued the releases therefor; that neither the contents of such loan receipts or their existence was known to appellant’s agents who settled the subrogation claims with the insurance companies at the time such settlements were made and the loan receipts and their contents therefore had no influence or bearing upon appellant- or its agents in making the subrogation settlements. Neither did the contents of the loan receipts have ■ any influence or bearing upon the agent of the insurance companies who made the settlements for them. Such facts having been conclusively established, the contents of the loan receipts are therefore wholly immaterial as to the issues here presented. Such is particularly true in view of the testimony of the witnesses who made the settlements as hereinafter set out.

The record reveals that appellees had employed Honorable Guy Carter’s firm of attorneys' to represent them in connection with their claims for fire losses sustained; that the insurance companies had employed Honorable J. Alex Blakeley as their attorney and representative to present their subrogation claims against appellant and to represent them in the matter; and that appellant had employed Honorable W. F. Bane & Son, as attorneys to represent it concerning claims of liability made against it- for the fire losses in question. These facts were soon thereafter known among all of the said attorneys. The record further reveals that both Carter and Blakeley began negotiations immediately thereafter with Bane & Bane concerning settlements-of their respective, claims as a result of the fire. Such negotiations were being made both orally and by letters. Carter wrote appellant a. letter concerning appellees’' claims of date April 19, 1950, and the said letter was turned over to W. F. Bane by appellant. The record also , reveals that the Mercury Insurance -Company had, on April 19, 1950, paid to appellee Homer A. Rodeni, the sum of $2000, the amount of indemnity to protect household goods against fire specified in the policy previously issued by it to Roden, had accepted from Roden a subro-gation right for the said amount and had then assigned the' said subrogation right or claim for the said amount to Alex Blake-ley for collection from appellant. Fireman’s-Fund Insurance Company had on April 27; 1950, paid to appellee E. E. Manning the sum of $5200, the amount of indemnity to protect the house against fire specified to the policy previously issued by it to Manning, had accepted from Manning a subro-gation right and had then turned the' subro-gation right for only $5200 over to Alex Blakeley for collection from appellant, Soon thereafter on May 4, 1950, Alex Blakeley, having both subrogation claims to collect from appellant, 'but having no authority to represent appellees in any way, began negotiations with appellant by writ-ting .the following letter (formal parts omitted):

“We represent the Mercury Insurance Company and the Fireman’s Fund Insurance Company in connection with claims against you under their subrogar J:ion rights under their policies of insurance covering household goods owned by E. E. Manning and Mrs. Homer Anderson Roden and the premises occupied by them located at 4808. Cole Avenue. The total loss amounts to approximately $9,000.

“Our investigation of the facts and circumstances surrounding the loss indicates that it was the result of the negligence of your agent and, therefore, we are looking to you for reimbursement of our client’s outlay.

“We shall be glad to discuss the mat- 1 ter with your representative at his convenience.”

Appellant received the letter and passed it on to its attorney, Honorable W,. F. Bane,, who represented appellant in negotiating and settling the two subrogation claims with Alex Blakeley, which settlements were consummated on June' 15, 1950. Except for the two letters' referred to, all negotiations that resulted in the settlements were oral. F. M. Boyd, Treasurer and Director of Anderson Furniture 'Company, drew .the draft for settlements, payable to Blakeley, Attorney for Insurance Companies but Boyd had nothing to do with the settlements. W. F. Bane delivered the draft to Blakeley and accepted the releases from Blakeley. Blakeley collected his fee for services from appellants through Bane for a sum over and above the subrogations claims.

The releases executed -to appellant by the two insurance companies are identical in substance except as to the indemnity amounts* the dates of the policies issued, the descriptions of properties covered, and the names of the parties. Since the material terms of the two instruments presented- for construction are the same, only one of the releases will be here copied in full as follows:

“State of Texas '

“County of Dallas '

“Whereas, heretofore, to-wit, on the 15th day of April, T95Ó, at about the ■hour of 12:15 P. M., that certain duplex dwelling owned by Emory E. Manning and wife, Mary Oneta Manning, located at 4808-10 Cole Avenue in the City of Dallas, Dallas County, Texas, was damaged by fire, and

“Whereas, at the time and on the. occasion of-said fire, said dwelling was insured under a policy of insurance issued to the said Emory E. Manning and wife, Mary Oneta Manning by the Fireman’s Fund Insurance Company, said policy bearing number 306165 with inception date of July 12, 1949, and expiration date of July 12, 1952, and

“Whereas, under and by virtue of the terms of said policy of insurance, the said Fireman’s Fund Insurance Company became bound and obligated to pay unto the said Emory E. Manning and wife, Mary Oneta Manning, the sum of Five Thousand Two Hundred and no/100 ($5,200.00) Dollars ' and did, on or about the 27th day of April, 1950, pay said sum unto the said Emory, E. Manning and wife, Mary Oneta Manning, in full and final discharge of its liability under said policy of insurance, and

“Whereas, under and by virtue of the terms of said policy of insurance, the said Fireman’s Fund Insurance Company became subrogated to the rights of the said -Emory E. Manning and wife, Mary Oneta Manning against any and all parties responsible f.oi the damage of said duplex dwelling, and.

“Whereas, it is the contention of the Fireman’s Fund Insurance Company that the said damage to. said dwelling was caused by the negligence of Anderson Furniture Company, by virtue whereof, the said Fireman’s Fund Insurance Company under its subrogation rights afforded by said policy of insurance, has asserted a claim against Anderson Furniture Company for payment of all loss and damage to said dwelling and has demanded of the said Anderson Furniture Company the sum • of Five Thousand Two Hundred and! no/100 ($5,200.00) Dollars in payment and satisfaction of its claim against the said Anderson Furniture Company, and

“Whereas, the said Anderson Furniture Company disclaims any and all liability of any nature whatsoever for the damage to said dwelling and contends that the claimed loss and damage was not occasioned by any act or conduct on the part of Anderson Furniture Company and denies that the said dwelling was, in fact, damaged or that the said Emory E. Manning and wife, Mary Oneta Manning suffered the loss and damages claimed to have been suffered by them and further denies that it is in any wise responsible to any person, firm or corporation to any extent whatsoever in any sum whatsoever arising out of or occasioned by said fire of April 15, 1950, and

“Whereas, Anderson Furniture Company, without admitting liability but expressly denying any and all, liability, and Fireman’s Fund Insurance Company, both realizing the expenses, burdens and uncertainties of litigation, are desirous of settling, adjusting and com/ promising all disputes existing between them by virtue of the premises and, accordingly, have agreed upon a full settlement and compromise of all loss or causes of action that the said Fireman’s Fund Insurance 'Company may ’ have against the said Anderson Furniture Company because of said claimed damages, in order to settle such controversy; '

“Now, therefore, for and in consideration of Four Thousand Seven Hundred Sixty One and 32/100 ($4,-.761.32) Dollars to it in hand paid, the receipt of which is hereby acknowledged, the said Fireman’s Fund Insurance Company does hereby release the said Anderson Furniture Company of and from any and all claims, demands, causes of action, damages, suits or costs whatsoever by reason of said occurrence and any and all resulting loss or damage to the dwelling owned by Emory E. Manning and wife, Mary Oneta Manning on the date of said loss.

“In Testimony Whereof, witness our hands this 15th day of June, A.D.1950.

“Fireman’s Fund Insurance Company By Weldon L. Moore

Special Agent

Witness:

R. L. Grier

J. J. Wallace”

It is admitted by all parties that the releases are free of ambiguity. By reason of their terms it is the position of appellant that it settled all of appellees’ claims for losses in full with their respective insurance companies and that appellees are precluded from asserting against it any cause of action for further damages by reason of the fire losses in question. Appellees and the insurance companies contend that the terms of the said instruments release only the subrogation rights of the insurance companies and do not purport to affect any claims of appellees against appellant for uninsured losses.

. An instrument such as the- releases here in issue must be considered as a whole, in order to give effect to its general purpose and the true intention of the parties. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504. ' We shall now examine the various pertinent parts of the releases that make up the whole instrument. The second and third paragraphs admit the issuance of the policies to appellees and acknowledge payments under the terms of the policies the amounts therein specified to the assured in full and final discharge of the liability of the insurance companies respectively. The fourth paragraph states that: “under and by virtue of the terms of the policy” the insurance companies “became subrogated to the rights” of appellees “against any and all parties responsible for the damage and destruction” of the properties insured. The fifth paragraph sets forth the contention made by the insurance companies to the effect that the fire and losses were caused by the negligence of appellant and that the insurance companies under their “subrogation rights afforded by said policy of insurance, has asserted a claim against. Anderson Furniture Company”, appellant, for payment of the losses and damages sustained by appellees in the amounts of their subrogation claims respectively. In the Mercury Insurance release the demand made was for the sum of $2000, the exact amount paid to the assured under the policy issued' as previously shown in the release, while in the Fireman’s Fund release the demand was for $5200, the exact amount paid to the assured under the policy as previously shown in the release. The sixth paragraph shows appellant’s denial of liability for the losses and damages sustained but the seventh paragraph provides that the parties “are desirous of settling, adjusting and compromising all disputes existing between them by virtue of the premises (meaning according to and under the terms of the subrogation claims previously set out in the release) and, accordingly, have agreed upon a full settlement and compromise of all losses or causes of action that the said (insurance companies) may have against the said (appellant) because of said claimed damages.” The eighth paragraph recites the final terms of the settlements made between appellant and the insurance companies for all of the claims and demands made upon appellant by the insurance companies (nobody else was there involved) by reason of the occurrence of the Manning and Roden fire. Settlements' were there made in each instance for a little less than the subrogation claims, respectively, amounted to but the releases were given for the full amounts. Nowhere do the insurance companies purport to be representatives of appellees or to- release appellant from any uninsured claims made , against appellant by appellees. Nowhere do the releases purport to release any ‘sums other than the respective subrogation claims.

The releases are evidence of the fact that appellant and the insurance companies had adjusted their previous differences and had previously agreed upon a settlement between them. As will be later herein shown the settlements were made by oral agreement of the agents of the parties and the releases executed accordingly thereafter. . According to the record before us the releases are the only written memor-anda showing the terms and purposes of the oral settlements made between the parties. Without attempting to change or vary -in any way the language used or the terms of the releases, parol evidence was heard to establish the surrounding circumstances, the situation of the parties and the subject matter being there considered. Such may be done, in considering matters of this nature although the language used is not ambiguous. Ryan v. Kent, supra; Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579; Scott v. Walden, 140 Tex. 31, 165 S.W.2d 449, 154 A.L.R. 1; First Nat. Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Allison v. Campbell, 117 Tex. 277, 298 S.W. 523; Merchants’ Life Ins. Co. v. Griswold, Tex.Com.App., 237 S.W. 232. These authorities further hold that parol evidence is admissible under such circumstances for the purpose of ascertaining the real intention of the parties.

Alex Blakeley, who represented the insurance companies in making the settlements with ’ appellant and who wrote the letter to appellant heretofore set out, testified, in effect, that he talked several times about the claims in question with Mr. Bane, one of appellant’s attorneys, - who represented1 appellant in making the settlements, and told Mr. Bane that he (Blakeley) was-representing only the insurance companies and that he hoped his subrogation claims for them could be settled without litigation; that he and Mr. Bane discussed the fact that Guy Carter’s firm of attorneys represented1 appellees’ claims over and above the insured losses and that Mr. Bane told him about Guy Carter’s demands for such losses; that Mr. Bane told him, Blakeley, that he was going to settle with him and fight it out with Guy Carter; that he at all times during all negotiations told Bane and1 other agents of appellant that he was representing only the insurance companies and that the settlements being made by him with Mr. Bane acting for appellant were being made for the insured losses only.

Honorable W. F. Bane, one of appellant’s attorneys, testified, in effect, that he had talked with Blakeley and had' réceived the letter from him and knew that Blakeley represented the insurance 'companies and that Blakeley did not represent anything different to him; that all t'he negotiation's for settlements between him arid Blakeley were oral and were principally concerning ' the amount of settlementsthat he knew Guy Carter represented' appellees aiid nobody had ever indicated to him that Guy Carter had ceased to represent ap-pellees; that he did not' know what the loan réceipts, given by appellees to' the insurance companies, contained until about February 1, 1951, some seven months after the settlements had been made with Blake-ley, and it was then that he amended his petition in, this suit claiming full settlement with the insurance companies for all claims; that he thought at the time he delivered the settlement draft and received the releases from Blakeley that such settlements covered-only the $2000 and the $5200 set'out in the releases and that he knew'appellees were making -demands for amounts in excess of the insured amounts but he was. not sure of the exact amounts of such claims. . The testimony- of Lee S. Bane corroborated that given by his father.

F. M. Boyd, Treasurer and Director of Anderson Furniture Company, appellant, testified that he knew when he issued the draft for settlement, that he was settling two subrogation claims of insurance companies against appellant, and that such were just subrogation claims that were being settled.

An examination of the release from its four corners and the language as a whole used in the releases reveals that an agreement had been reached between appellant and the insurance companies settling only the subrogation claims. They were the only parties to the agreements and nobody else was represented in the settlements. Therefore, the releases were given in settlement only of' the .subrogation rights and claims of the insurance companies against the appellant. The instruments could not bestow any benefits.or withhold any rights concerning anybody who was not a párty to them or not in any way represented in the settlements. Appellees were not parties to the agreed settlement made between the insurance companies and appellant. Neither : were they represented there. They were 'strangers to that contract of settlement, except for the use.of their names in ■the releases for the sole purpose of identifying the losses and subrogation- claims as a result thereof that were being settled. Their names were used only to show how the insurance companies acquired the sub-rogation claims and to further designate or identify the losses sustained. The insurance • companies only released appellant from any further liabilities to the insurance companies and only to them. Appellees did not release appellant from liabilities' to them: ■ • The contents of the releases, together with the contents of the letter introduced in evidence and the testimony of the witnesses Blakeley, W. F. Bane and Boyd who negotiated and consummated the settlements concerning the surrounding circumstances and intention of the parties conclusively establishes the fact that the -settlements were intended to be made and were 'actually made ■ only for the. subrogation claims of the insurance companies' and not for any part of uninsured claims.

Be that as it may, the record reveals that Blakeley and W. F. Bane, who represented the insurance companies and appellant, respectively,’ did not. intend to, and did not in fact, contract to settle any claims other than the subrogated claims, or the insured claims, and not the uninsured claims. Both Blakeley and W. F.'Bane so testified, in effect, and such was not controverted. The insurance companies pleaded reformation of the releases, if need be, in the. alternative, to make them conform, if need be, to the terms of the oral agreement and the intention of the parties, acting through their respective agents. The pleadings and the evidence concerning this matter were before the court and every legitimate presumption must be indulged in favor of the trial court’s judgment. If the trial court’s judgment can be ■ sustained upon any reasonable theory consistent with the record, it must be affirmed Fitzgerald v. Legrande, Tex.Civ.App., 187 S.W.2d 155; Kimball-Krough Pump Co. v. Judd, Tex.Civ.App., 88 S.W.2d 579; Ellerd v. Murray, Tex.Civ.App. 247 S.W. 631; Green v. Cross, 79 Tex. 130, 15 S.W. 220.

For these reasons the trial court was justified in giving an instructed verdict in favor of the insurance companies and their general agents, leaving the fact issues raised by the pleadings of appellees and appellant to be determined by the jury and giving proper credits in the judgment rendered for the subrogation claims found to be true and correct.

It is our opinion that the record reflects that it occurred for the first time to the Banes, appellant’s attorneys, to make a contention that the releases were for a full settlement, including the uninsured losses as well as the insured losses, seven months after the settlements had been made and long after suit had been filed by appellees and appellant had answered it on its merits. The thought occurred to the Banes as a result of a trivial remark made by Alex Blakeley to young Lee S. Bane, while they were talking about the case in Blakeley’s office on or about February 1. 1951, after Blakeley had made the settlement with W. F. Bane and was out of the case and not representing the insurance companies any further. In discussing the case Blakeley asked young Bane, “Why don’t you throw that loan receipt at them?” When young Bane inquired for further information, Blakeley further said, “If you want to give these folks (meaning Mannings and Ro-dens) some trouble, why don’t you jflead those releases”. However, Blakeley thereafter testified that the releases were not for full settlements and that he did not represent appellees in the settlement and the Banes testified, in effect, that such was their understanding. Nevertheless, young Bane went immediately and told his father what Blakeley had said and Banes amended their petition in this action claiming full settlement of the claims as a defense for the first time seven months after the oral settlements had been made and the releases in question executed.

In answer to special issues submitted, the jury, under instructions of the trial court, awarded appellee Roden $6,130.32 actual damages for loss of personal property and appellee Manning $6,750 actual damages done to the duplex both against appellant because of the negligence of its agents which proximately caused the fire and losses sustained and further awarded each ap-pellee the sum of $2500 against appellant as exemplary damages because of the. gross negligence of appellant’s agents which resulted in both actual and exemplary damages. . After giving proper credits for the subrogation claims previously herein discussed against the actual damages awarded, the trial coprt entered judgment in accordance with tbe jury findings.

Appellant charges that the trial court erred in permitting the introduction of a list of lost items of personal property belonging to appellee Roden and the values, respectively, of each item, the same being identical with appellees’ Exhibit A attached to their pleadings. It will be noted that appellant does not' here challange the sufficiency of the evidence. The list made by Roden and his wife contains approximately 185 items of alleged lost articles with the values respectively set out opposite each item. They were required to plead the items lost and their respective values before they could recover for the losses sustained. They met such requirement by so pleading. In this instance the goods, except for a badly damaged bedroom suite, were lost by complete destruction. Nobody but the owners would be expected to know much if, in fact, anything about all the items lost or their values. Consequently under such circumstances the courts have uniformly approved more lenient ways and means of establishing the measure of damages than is usually required in most other actions for damages and have been more liberal in permitting the introduction of evidence to sufficiently prove such losses.

In the case at bar Roden and his wife were permitted to testify that the list correctly reflected the articles lost and the actual values, as well as their values to them. In the case of Interstate Forwarding Co. v. McCabe, Tex.Civ.App., 285 S.W. 920, the court held in a similar action that such a list of articles, together with their respective values, when identified by the owner as being correct, was admissible in evidence without first proving market value of the respective articles or the lack of market value. This court observed the same rules of law in the case of Demeritt v. Bade, Tex.Civ.App., 98 S.W.2d 219. In the case of City of Wichita Falls v. Mauldin, Tex.Civ.App., 23 S.W.2d 771, affirmed, Tex.Com.App., 39 S.W.2d 859, the court observed such rules of law and there held that in order to qualify the owner of such destroyed goods to identify them and to testify as to their value, he need not be required to state the original costs of such goods or their period of use and their condition but he may testify as to their value to him or to the loss of them in money value to him.

Under the record and the authorities cited it is our opinion that the list of lost items, together with the values respectively thereof, was properly admitted in evidence by the trial court. In addition to the other authorities already cited we likewise cite the case of Pecos & N. T. Ry. Co. v. Grundy, Tex.Civ.App., 171 S.W. 318, which has since been many times cited with approval.

Appellant contends that a proper measure of damages was not submitted to the jury by the trial court but we do not agree with such contention. Such issues were raised by both the pleadings and the evidence. In separate issues the trial court inquired about the reasonable value of property to its owner immediately before the fire and immediately after the fire and the jury findings were based thereon. Under the authorities previously cited we think the measure of damages was correctly submitted but we likewise cite the following additional authorities: American Ry. Express Co. v. Thompson, Tex.Civ.App., 2 S.W.2d 493; Wutke v. Yolton, Tex.Civ.App., 71 S.W.2d 549; Ricks v. Smith, Tex. Civ.App., 204 S.W.2d 12. The failure to define the term “reasonable value” was not error as claimed by- appellant. However, appellant has waived its right to complain about such if it were error since it did not request a definition in writing and furnish a substantially correct definition to the trial court as required by Rule 279, Texas Rules of Civil Procedure.

Appellant charges that the trial court erred in submitting Special Issue number 9 to the jury inquiring if M. E. Martin instructed Jessie Ivie to install the gas stove in question without first turning off the flow of natural gas at the meter. The proof shows that Ivie, an employee of appellant, installed the stove under the direction of Martin, another employee of appellant, and that a gas explosion occurred during the process of installation, causing the fire in question and the losses sustained, -as a result of Ivie’s failure to cut off the flow of natural gas while installing the stove. The jury found that Martin did instruct Ivie to install the gas stove without turning off the gas at the meter.

May we here observe, however, that, according to the record before us, appellant does not anywhere challenge or complain about the submission of further issues to the jury inquiring if such acts of appellant’s agents constituted gross negligence and the amount of damages, if any, to be awarded to appellees, respectively, as exemplary damages because of such gross negligence, if any, of appellant’s agents. Neither does appellant challenge or complain about the jury’s findings in answer to such issues to the effect that such acts of appellant’s agents constituted gross negligence for which reason the jury awarded each appellee $2500 as exemplary damages.

-In connection with its complaint about the submission of Special Issue No. 9 appellant charges that appellees’ pleadings are insufficient and that there was no evidence to support the issue. Appellees pleaded, in effect, and briefly here stated, •that Ivie, as agent and servant of appellant, while working under the direction of Martin, a principal or vice principal of appellant, and while in the course of his employment, negligently caused the fire, that resulted in the losses in question. It is our opinion that appellees’ pleadings are sufficient to support the said issue. Under the record before us appellees need not do more than support the foregoing pleadings with proper evidence in as much as appellant has not challenged the further findings of the jury concerning gross negligence and exemplary damages.

Appellant is in error in charging that “no evidence” was introduced in support of Special Issue No. 9. However, ap-pellees were charged with the burden of introducing sufficient evidence of probative force to establish an affirmative answer to the said issue. In determining the sufficiency of such evidence, we must give credence only to the evidence and circumstances favorable to the jury’s answer and disregard all evidence to the contrary. McLean v. McCollum, Tex.Civ.App., 209 S.W.2d 959, and other authorities there cited.

Jessie Ivie testified that he worked for appellant under the direct supervision of M. E. Martin from whom he got his instructions; that a portion of his duties were to deliver to the purchaser (appellees) a cooking range stove that had been sold by appellant and connect it up and that M. E. Martin instructed him to connect up for the customer a cook stove such as the one here in question without cutting off the flow of the natural gas. at the meter. He further testified that he was following the instructions of Martin on the occasion in question, did not cut off the gas, an explosion occurred that resulted in the fire and the losses sustained. Ivie testified on direct examination that he was so instructed by Martin; he so testified on cross-examination and again on redirect examination. M. E. Martin testified that he did not remember giving Ivie any specific instructions about installing a cooking range but he could have discussed it with him. This evidence is sufficient to sustain the jury finding in answer to Special Issue No. 9 to the effect that Martin instructed Ivie to install the gas cook stove without first turning off the flow of the natural gas at the meter.

Assuming that the jury was justified in its affirmative answer to Special Issue No. 9, appellant contends that it must be established also that M. E. Martin was a vice principal of appellant before exemplary damages can be awarded to appel-lees and we think such contention is sound. The rules of law concerning the liability of a corporation for exemplary damages arising from gross negligence of its agents have been restated by the Supreme Court in the case of Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397. There the court designated four separate classes of corporate agents either of which is a vice principal of a corporation. Only two of the four classes of corporate agents there set out are of interest to us in determining the issue of vice principal here presented. The court there held in part that the term “vice principal” as applied to an agent of a corporation means (1) one who has authority to employ, direct and discharge servants of the master, or (2) one to whom a master has confided the management of the whole or a department or division of the business.

F. M. Boyd, treasurer of Anderson Furniture Company, appellant, testified, in effect, that M. E. Martin had been one of appellant’s employees for the past 18 or 20 years and he was a trusted employee who had been given authority to help operate appellant’s business; that prior to the fire in question Martin had been employed as shipping clerk for 5 or 6 years and had supervisory control over the shipping department of the business with 10 or 12 men working under his control and supervision; that appellant had a retail store at 2101-07-09 Elm Street in Dallas and immediately back of the said retail store and opening on Pacific Avenue at 2110 Pacific Avenue was the shipping room over which Mar.tin had supervisory control; that appellant maintains a warehouse at 2226- Griffin Street and operates another retail store at 2222 North Harw.ood Street; that Martin was charged with the duties of shipping and receiving merchandise for appellant, making. deliveries of local goods sold and he also had authority to direct the men working under him what to do and what not to do; that Jessie Ivie was one of the men working under the direct supervision of' Martin who had authority'to direct Ivie when and where to malee deliveries;' that Ivie delivered the stove in question to the premises of appellees; that Martin employed Jessie Ivie but his employment was' confirmed by appellant’s officers; that Martin had the power to recommend whom he hired and fired.

The testimony of this officer of the corporation was corroborated in the main by the testimony of M. E. Martin, who testified, in effect, that he had been with appellant a long time and had been shipping clerk for 8 or 10 years and was in charge of the shipping department and the warehouse where some merchandise was kept; that the warehouse was separate and apart from the retail store and had a different entrance ; that he supervised the shipping department and the warehouse and when furniture was sold, it was a part of his duty to get the same out of the warehouse, prepare it for delivery and have it delivered to the customer; that he directed Jessie Ivie to deliver the stove .in question to Roden’s home and connect it up; that he had employed Ivie in November of 1949 and he had likewise employed Ivie’s helper, Anthol Armstrong; that he had 10 or 12 men working under his supervision and he had authority to tell them where to go and what to do and Ivie and Armstrong were two of them; that most of the time he hired men who came well recommended to them but he sometimes hired a man if he knew the company he worked for and then checked on the man after he hired him; that he got his authority for operating the shipping department and supervising the warehouse directly from Mrs. Grace Anderson, president of the Anderson Furniture Company (appellant), and a member of the Board of Directors; that she told him he was a trusted employee and that the shipping department including the supervision of the warehouse was his department but' he always consulted the officials concerning any changes made in his department.

No testimony was offered that even had a tendency to' contradict or disprove any of the foregoing testimony. This testimony conclusively establishes that M. E. Martin had been given the management and had been placed in charge of a specific department of appellant’s business with 10 or 12 employees working under his supervisory control. This alone conclusively establishes the fact that Martin was a vice principal of appellant in the operation of its business. However, the evidence also conclusively shows that Martin had full authority to direct the work of the employees working under his supervision in his department and he testified without it being contradicted that he hired the employees working under him and had authority to recommend the firing of -such men. The record reveals, however, that he never did recommend the firing of any employee and none was ever fired. It is our opinion that the evidence conclusively establishes, under the holdings of the Supreme Court previously cited, that M. E. Martin was the vice principal of appellant as a matter of law. In support of our position we quote further holdings of the Supreme Court in the case previously cited of Fort Worth Elevators Co. v. Russell, supra, as' follows [123 Tex. 128, 70 S.W.2d 407]:

“If in an action for actual damages for negligence the vice principal is to be regarded as the alter ego of the corporation, and his acts corporate acts, how can it be said that his grossly negligent acts are not also those of the corporation? If he represents the corporation when negligent, whom does he represent when grossly negligent? There can be 'but one logical answer, and that is, he still represents the corporation; provided, of course, the work in hand is within the duties delegated to him. Mr. Sedgwick, it seems to us, states the correct general rule, as follows:

“ ‘A corporation is liable for exemplary damages for its own act, that is, for the act of its directors or other agents whose act is the act of the corporation. Thus gross negligence in hiring servants will subject a corporation to exemplary damages, and so will express authorization or ratification of the servant’s acts.’ Sedgwick on Damages (8th Ed.) vol., 1, paragraph 379.

“If this logic is sound, then a' corporation, in view of the general authorities previously cited, is responsible in punitive damages for the grossly negligent acts of a vice principal exercising the power and authority with which Pettijohn was clothed in this case. Aside from the logic of this conclusion, however, our Appellate Courts have held or stated that corporations are liable in exemplary damages for the punitive acts of their vice principals.”

The court there cites numerous authorities in support of the rules there restated and the case itself has since been many times cited with approval.

Assuming, however, that the issue of vice principal was not conclusively established as a matter of law but was a disputed issue of fact as contended by appellant, it must also be assumed, under the record and authorities cited in support thereof, that there exists an implied finding by the trial court to the effect that Martin was appellant’s vice principal. In the case at bar appellees’ cause of action for exemplary damages was an independent ground of recovery. After submitting the independent grounds for actual damages, the trial court then submitted five special issues on the independent grounds of exemplary damages. After the jury answered favorably all of the grounds for actual damages it likewise answered favorably all of the grounds submitted for exemplary damages. In doing so, it found that Martin instructed Ivie to install the stove without turning off the flow of the natural gas at the meter. It further found that the giving of such instructions by Martin was gross negligence and that the attempt of Ivie to connect the stove without cutting off the gas was also gross negligence, for which reasons it further allowed each appellee the sum of $2500 as exemplary damages in two separate issues. The issue of whether or not Martin was appellant’s vice principal was a necessary issue to be established in order to sustain grounds of recovery for exemplary damages and appellant admits that such issue was raised by the evidence. Such issue was not submitted to the jury. Appellees as plaintiffs did not request its submission and appellant as defendant did not object to the failure of the trial court to submit it.

Under the provisions of Rulé 279, Texas Rules of Civil Procedure, the right to have the jury pass upon the question of vice principal was waived by both parties, and, since there were no written findings, of fact made by the trial court concerning the matter, the omitted issue of vice principal must be deemed ás found by the trial court in such a manner as to support its judgment. The precise point here presented seems to have been determined adversely to appellant’s contention here made in the case of Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App., 172 S.W.2d 991, writ refused. In that case a component element of ground of recovery was the authority of an agent to make- the contract in question. Such a question was not submitted to the jury. As here, the plaintiff did not request its issue of vice principal to be submitted to the jury and the defendant did not object to the failure of the trial court to submit the issue. The court there held that under such circumstances, the trial court should decide the issue in accordance with the evidence because its determination by a jury had been waived. In as much as all other- grounds of recovery of exemplary damages were answered favorably by the jury, it must be concluded that there exists an implied finding of the trial court to the effect that Martin was the appellant’s vice principal, there being .ample evidence; if not conclusive evidence, in support thereof. This rule of law is likewise supported by the cases of Jordan v. Collier, Tex.Civ.App., 223 S.W.2d 544; Manzer v. Barnes, Tex.Civ.App., 237 S.W.2d 686; and Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853.

A careful examination of the record reveals no reversible error. Appellant’s points are all overruled and the judgment of the trial court is affirmed.