# Standard Fire Insurance Co. v. LaCoke > Court of Appeals of Texas · November 7, 1978 · 574 S.W.2d 802 URL: https://www.frixlaw.com/law-library/cases/5050239 ## Case - **Full name:** The STANDARD FIRE INSURANCE COMPANY v. Christy Jean Wand LaCOKE - **Court:** Court of Appeals of Texas - **Decided:** November 7, 1978 - **Citations:** 574 S.W.2d 802; 1978 Tex. App. LEXIS 3914 - **Precedential status:** Published - **Opinion:** Dissent by Cornelius - **Judges:** Hutchinson, Ray, Cornelius - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5050239 ## Opinion text CORNELIUS, Chief Justice, dissenting. I respectfully dissent. In my judgment, when appellant’s petition was received on June 3 in the VIM Room at the Dallas County Records Building, and solely because of the specific instructions of the deputy district clerk was not delivered to the clerk’s office at the regular 11:00 o’clock a. m. delivery, but instead was placed in the clerk’s receptacle to be held for pick-up by the clerk at a later time, it was filed within the contemplation of the law. A paper is considered filed when it is delivered to or placed in the custody and control of the official with whom it is to be filed. Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591 , 291 S.W.2d 315 (1956); Gonzalez, Et Al. v. Vaella, Et Al., 91 S.W.2d 904 (Tex.Civ.App. San Antonio 1936, writ dism’d). If the paper is subject to the officer’s custody and control and is available to him, his delay in taking actual physical possession of it or in affixing his file mark to it will not affect the timeliness of the filing. Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35 , 33 S.W. 112 (1895); Blackburn, Et Al. v. State Ex Rel. Echols, Et Al., 72 S.W.2d 627 (Tex.Civ.App. Eastland 1934, no writ); 49 Tex.Jur.2d, Records and Registration Acts, Secs. 13 and 14, pp. 336, 337. The principles applied in Travelers Ins. Co. v. Johnson, 131 S.W.2d 242 (Tex.Civ.App. Beaumont 1939, writ dism’d judgmt. cor.), and Tate v. Standard Accident Ins. Co., 32 S.W.2d 932 (Tex.Civ.App. Beaumont 1930, writ ref’d), should govern this case. In Johnson , a notice of appeal from an Industrial Accident Board award was required to be filed with the board by August 8th, a Sunday. The notice was mailed on Friday, August 6th, and was received in the Austin post office on Saturday, August 7th. Normal delivery would have been on Monday, August 9th. The board did not maintain a post office box at the post office, but when its mail was received at the post office it was sorted and placed in a box or receptacle along with other state mail going to the same building awaiting delivery. The Industrial Accident Board’s office was closed on Saturday and Sunday and there was no one present at its offices on those days to receive the mail. The mail was *807 available for pick-up at the post office on those days, however, and the court held that although the petition was not delivered until Monday, August 9th, it was considered legally filed with the Industrial Accident Board at the time it was placed in the receptacle at the post office and thereby made available to the board. In Tate , the notice of appeal from the Industrial Accident Board award was delivered to a postal substation in the Capitol Building where the Industrial Accident Board rented a box. Upon receipt of the letter, the postal superintendent placed a notice in the Industrial Accident Board’s box indicating that he held the letter in question for delivery. The Board’s offices were closed for several days when the letter was received at the post office and the board’s employees did not pick up the mail until sometime after the last day for filing had passed. The court held, however, that when the notice (not the letter itself) was placed in the Industrial Accident Board’s box and the letter was held by the post office for pickup by the Board’s employees, it was filed with the Board as of that time. The facts in the case at bar are stronger than those in either Johnson or Tate . Here the jury found, on sufficient evidence, that the petition was received in the VIM Room at the Dallas County Records Building on June 3 and on that date was placed in the district clerk’s mail slot where it was then available for pick-up. The undisputed evidence showed that, but for the deputy clerk’s instructions to hold the mail for later pick-up, the mail on hand at that time would have been delivered to the clerk at his office at the 11:00 o’clock a. m. delivery. By instructing the postal officer not to deliver the mail, but rather to hold it for him to pick up later, the clerk constituted the postal service his agent and the petition was effectively placed in his custody and control. The petition should be considered as having been filed as of that time. To hold otherwise would allow public officials to thwart the right of citizens to use the mail to timely file papers with them by simply instructing the postal service to hold their mail for pick-up and then failing to call for it until the applicable time limits had passed. As said by the court in Tate, supra: “The courts having repeatedly held that notice by registered mail was a compliance with the law, appellant had the right to use and rely upon that method And again, “It was no fault of appellant . that the board did not call for and get its mail.” For the reasons stated, I would rule that the petition was timely filed. However, as the case is being affirmed, I concur with Justice Hutchinson that attorney’s fees and interest were properly denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5050239. Public record. Not legal advice.