Southern Casualty Co. v. Welch Motor Co. , 291 S.W. 272 ( 1927 )

Appellee Welch Motor Company sold to C. A. Riddle an automobile, and in part payment thereof took Riddle's note and had same secured by a mortgage on the automobile. Appellant issued a fire insurance policy covering the car, payable to Welch Motor Company as its interest might appear. This suit was instituted by the Welch Motor Company against appellant and Riddle, alleging that there was still unpaid $400 on the mortgage note, that the car had been totally destroyed by fire, and asking for judgment against appellant and Riddle jointly for the amount thereof. The cause was tried to a jury, submitted on special issues, and resulted in judgment being rendered for the Welch Motor Company as prayed for. This appeal is prosecuted alone by appellant.

Appellant assigns error to the action of the trial court in overruling certain special exceptions. There is nothing in the judgment of the trial court which shows that the exceptions were called to the attention of the trial court or that it in any way acted thereon. The action of the trial court on special exceptions cannot be preserved by bills of exception, and, unless its judgment shows that the same were acted on, its action thereon cannot be reviewed by the appellate court. Garcia v. Yzaguirre (Tex.Com.App.) 213 S.W. 236; Hall v. Williams Ellis (Tex.Civ.App.)267 S.W. 520. We do not, however, think the trial court erred in overruling, if it did, the exceptions.

Appellant complains of the action of the trial court in submitting certain special issues to the jury. It did not in any way object to said issues being submitted, and under the statute, where a cause is submitted on special issues, unless the parties except thereto before same are submitted, they waive all objections. Article 2185, Revised Statutes; Mansfield v. Rigsby (Tex.Civ.App.) 273 S.W. 290. We do not, however, think there was any error in the court's submitting the issues it did submit.

Appellant complains of the form of the judgment as entered by the trial court, in that it renders a joint judgment against Riddle and the insurance company, and then based on the pleadings of Riddle, renders a judgment in favor of Riddle over against appellant for the amount which the Welch Motor Company recovered against him. We do not think there is any merit in appellant's contention. The payment by appellant of the judgment as written will satisfy same in its entirety.

The policy issued by appellant on the car provided that it could be used for hire and livery purposes "while operated and controlled by the assured or by a person regularly employed by him as chauffeur, but not otherwise." Appellant contends it is not liable because the evidence shows the car at the time it was burned was being operated by a party to whom it had been rented without a driver. We do not agree with this contention. The jury found that appellant's agents knew at the time it issued the policy, and knew after same had been issued, that the car was used as a service car, and was being rented out to parties without a driver. Appellant's agent testified that he knew these facts when the policy was issued, and that the company had charged an additional rate for the car being used as a service car, and that, after the policy was issued, he knew that the car was being rented to parties without a driver, and that he did not in any way cancel the policy or make any complaint. There was no dispute about the car being totally destroyed, and the jury found that its value at the time of destruction was $600. The judgment is for $400, being the amount of the unpaid balance due Welch Motor Company on its note.

We have examined all of appellant's assignments of error, and do not think any reversible error is shown.

The judgment of the trial court is affirmed.