# Freeman v. Commercial Union Assurance Company > Court of Appeals of Texas · October 7, 1958 · 317 S.W.2d 563 URL: https://www.frixlaw.com/law-library/cases/9766125 ## Case - **Full name:** Roy J. FREEMAN, Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Appellee - **Court:** Court of Appeals of Texas - **Decided:** October 7, 1958 - **Citations:** 317 S.W.2d 563; 1958 Tex. App. LEXIS 2291 - **Precedential status:** Published - **Opinion:** Dissent by Davis - **Judges:** Fanning, Chadick, Davis - **Cited by:** 6 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/9766125 ## Opinion text DAVIS, Justice (dissenting). The opinion I filed herein on October 7, 1958, is withdrawn and the following opinion is substituted therefor. I dissent. The holding of the majority on appellant’s points 1, 2, 3 and 4 (best evidence rule) is in direct conflict with the holding of this Court in the case of Lloyds Guarantee Assurance v. Sheffield, Tex.Civ.App., 170 S.W.2d 327 , wr. ref., w. o. m., and other cases on identically the same question. First,- this testimony from appel-lee’s witness Self bore upon the issue of increased hazard, an ultimate issue, not a collateral issue, and was offered for the sole purpose of showing that the hazard was increased when the use of the property was changed from that of a tenant dwelling to that of a furniture business, and the rates as fixed by the Insurance Commission for each hazard was different. The classification of the operations covered by the policy in the Sheffield case was “Lumber yards— sawmill.” It purported to include the insured’s sawmill the same as his lumber yard. *571 One of defendant’s witnesses was not permitted to testify from a “Code book” or Manual that he had before him classifying the various risks and rates to be applied according to orders promulgated and adopted by the Board of Insurance Commissioners ■of Texas, not an original nor authenticated ■copy, which “Code book” showed that Code .No. 8232 covered a “lumberyard” but did not cover a “sawmill”; and that a “sawmill” was covered by Code No. 2710 and carried ■a higher rate than a “lumber yard.” In holding that the rejection of the testimony was not error, this Court said in part: “ * * * It further appears from Gay’s testimony that the book from which he was testifying was not the original or a certified copy of the purported orders of the Board of Insurance Commissioners, nor was it otherwise authenticated.” The Sheffield case and the case at bar cannot be distinguished. The opinion is also in conflict with the following cases: Metropolitan Casualty Ins. Co. v. Edwards, Tex.Civ.App., 210 S.W. 856 , wr. dis. (defendant not permitted to show by parol evidence what premium it charged for two classifications of insurance); Hillin v. Hagler, Tex.Civ.App., 286 S.W.2d 661 , no wr. hist. (Parol evidence not admissible to prove the amount of rainfall as shown by U. S. Weather Bureau Records); Chambless v. Woods, 5 Cir., 1950, 182 F.2d 342 (parol evidence by local rent attorney as to maximum allowable rental, disapproved) ; Smith v. Briggs-Weaver Machinery Co., 63 Tex.Civ.App. 285 , 132 S.W. 954 , no wr. hist, (the Secretary of State’s deposition was not admissible to prove a matter of fact which was shown by the records of his office) ; City of Dallas v. Milum, Tex.Civ.App., 200 S.W.2d 833, 839 , wr. ref., N.R.E. (a witness’ testimony was not admissible to prove what he was paid for eggs delivered to a warehouseman “according to the records of our City”) ; Bass v. Mitchell, 22 Tex. 285 , and Stafford v. King, 30 Tex. 257 (the Commissioner of the General Land Office could not testify as to records in has office over objection) ; Wells Fargo Express Co. v. Williams, Tex.Civ.App., 71 S.W. 314 , no wr. hist, (a letter from a Railroad Commissioner was not proper evidence to show the commission rates on a certain class of goods); Sabine Land & Improvement Co. v. Perry, Tex.Civ.App., 54 S.W. 327 , no wr. hist, (it was error to permit plaintiff to testify as to the contents of a government report and railway report for the purpose of showing quantity of stock shipped); Wagner v. Porter, Tex.Civ.App., 56 S.W. 560 , no wr. hist, (the action of a city council in delegating to the mayor the right to make a certain contract in behalf of city, and in ratifying the contract when made, can only be established by the minutes of the meeting when such action was had, and cannot be established by parol testimony, when it does not appear that such record is lost or destroyed) ; James v. Gaal, Tex.Civ.App., 282 S.W. 298 , wr. ref., n. r. e. (the minutes of the probate court are the best evidence of whether a sale of realty was confirmed), and Panhandle & S. F. R. Co. v. Sanderson,’ Tex.Civ.App., 218 S.W. 540 , wr. dis. (oral testimony as to the contents of the official Railway Equipment Register was not admissible over objections that it was not the best evidence). I humbly hope it is no answer, as the majority holds, that since “there is nothing in the record that in any way contradicts the truth of Mr. Self’s testimony,” the admission of this rankly secondary hearsay evidence as to an official act of a Governmental Agency ought to be approved. This is the first time in my life that I have ever heard of such rule attempted to be applied. It is not just new in this state, it is new in all legal jurisprudence. And may God forbid it to become the law that a litigant will have to disprove any fact that is permitted to be proved by illegal, or incompetent evidence before he can complain about it. If that is now the law, all rules of evidence heretofore existing have just been abolished. *572 None of the authorities cited by the majority sustain their holding on the admissibility of the secondary evidence as to what rates the Texas Insurance Commission had promulgated for the uses of tenant houses and furniture businesses. Market prices, facts evidenced by book accounts, the entries of which were made by witnesses, or about which a witness had an independent recollection, expert testimony and life expectancies are not comparable to official records or official acts of a public agency such as the Texas Insurance Commission, or the Texas Railroad Commission. If parol evidence is admissible in this case, it will be admissible in all cases from here on, whether or not better evidence exists. If the holding in Haynes B. Ownby Drilling Co. v. McClure, Tex.Civ.App., 264 S.W.2d 204, 208 , wr. ref., n. r. e., relied upon by the majority, is that rules of the Texas Railroad Commission may be shown by parol, then I disagree with it. However, I do not so construe the holding. In the Ownby case, the question and answer were allowed for the purpose of testing the knowledge and qualifications of the witness. The court said in that case: “ * * * We do not consider this testimony any effort to prove the contents of a rule of the Railroad Commission but rather to test the knowledge and qualifications of the witness preliminary to proving the practices of defendant Mabee which were material to the issue of negligence of such company * * * ” (Emphasis added.) As a matter of law, the Insurance Commission fixes the rates of insurance in this state. As a matter of common knowledge, rates change frequently. They have not been the same for the whole 23 years Mr. Self has been in the insurance business. As a matter of common knowledge, rates are different in the different cities in this state. Mr. Self did not testify to any rate for the City of Texarkana. His personal knowledge did not make or fix the rate and the only place he could have gotten the official rate for the City of Texarkana would have been from the official publication from the Insurance Commission; not from his-personal knowledge. In the case at bar, appellee was not testing the knowledge and qualifications of its witness Self as the following excerpt from his testimony, elicited by appellee’s counsel,, shows: “Q. As I understand from your testimony, the matter of the amount of the premium that is paid by an individual is governed by the hazard, or the risk covered ? A. That is the principle for all rates — the hazard involved. “Q. If the hazard involved is greater, is there a considerable greater premium? A. The rate is higher.1’ (Emphasis added.) Appellee was not testing its witness' knowledge and qualifications, but was trying to show the fire hazard was greater in the case of a furniture business than in the case of a tenant dwelling by proving the rate to be higher; and it did this by paroi evidence that the insurance rate, as prescribed by the Texas Insurance Commissionr was higher in the case of furniture business than a tenant dwelling. The “best evidence” rule applies to any and all writings of a public character, and where such writings are accessible, parol evidence of their contents is excluded. 32 C.J.S. Evidence § 804, p. 733. See also 32 C.J.S. Evidence § 808, p. 737, where a number of types of official records and documents is given to which the best evidence rule applies. Self did not testify that he acquired his. knowledge from the original or a certified copy of an order of the Insurance Commission; neither was his testimony corroborated by the original or certified copy. There is no evidence that the original or a certified copy was not available. This was testimony on an ultimate issue. It is the only evidence that the rate was higher for the use of the house for a furniture store *573 than that of a tenant dwelling, and definitely resulted in injury to Freeman. I note here that the house was used as a tenant dwelling, according to the evidence, from the date of the issuance of the policy (October 25, 1954, a three-year policy), until June or July, 1956. Appellee alleged that the policy had been forfeited and voided because Freeman had “wilfully concealed or misrepresented material facts or circtim-stances concerning said insurance.” (Emphasis added.) The change of use was made long after the effective date of the policy. There is no evidence that appellant wilfully concealed from or misrepresented to appellee any fact before the policy was issued, or after the policy was issued and before the loss, or even after the loss. And, there is no finding by the jury that such occurred. I would sustain appellant’s first four points. The majority has overruled appellant’s points 5 and 6 upon the ground, as I understand it, that the use of the premises described in the policy was a contractual warranty to which Articles 21.16 and 21.17, Vernon’s Ann.Tex.Insurance Code do not apply. I agree that these points (5 and 6) should be overruled, but not for the reasons stated. In the policy, the words “tenant dwelling” appear in the blank over the word “Occupancy.” The policy merely describes the use of the insured building as that of a tenant. It is in no sense a warranty, contractual or otherwise. It is shown by the record that on the policy date the premises were being used as a tenant dwelling. There is no provision in the policy that ap-pellee was not to be liable on the policy if the building was not being used as a tenant dwelling at the time of the loss. If the change had reduced the hazard, surely ap-pellee would have been liable. Therefore, the case is not like Fidelity Union Fire Ins. Co. v. Pruitt, Tex.Com.App., 23 S.W.2d 681 , in which the policy insured the building while occupied by the owner and not otherwise, nor National Fire Ins. Co. of Hartford v. Carter, Tex.Com.App., 257 S.W. 531 , in which the policy providfed it was void if the interest of the insured be other than unconditional and sole ownership; which two cases are relied upon by the majority. There are no jury findings in this case that will support a judgment on the theory of “increased hazard.” Special Issues Nos. 7 and 8, and the affirmative answers of the jury, are as follows: Special Issue No. 7: “Do you find from a preponderance of the evidence that Roy J. Freeman made use of the house prior to its destruction by fire on or about December 25, 1956, for the purpose of operating a furniture business? ” Answer: “Yes.” Special Issue No. 8: “Do you find from a preponderance of the evidence that m so using said house that the hazard incidental to such use was increased? ” Answer: “Yes.” (Emphasis added.) Now, just what do we have? Appellee’s only allegations concerning the use was that “the hazard incidental to the risk on said premises has been increased by reason of Roy J. Freeman’s use of the same in the conduct of a business.” It did not plead that the “use of the house as a business” increased the hazard incidental to the “use of the house as a business.” Yet, that is all that was asked and found by the jury in Issues 7 and 8. Special Issue No. 7 inquired if “Freeman made use of the house * * * for the purpose of operating a furniture business.” The jury said he did. Special Issue No. 8 inquired if “the hazard incidental to ‘such use’ (for the purpose of operating a furniture business) was increased.” The phrase “such use” in Special Issue No. 8 could only refer to the “use” (operating a furniture business) inquired about in Special Issue No. 7. There is no issue or jury finding that the use of the house for the purpose of a furniture business increased the hazard over the hazard in the sense of the house as a tenant *574 dwelling. Appellant’s points on these issues should be' sustained. Further, Special Issue No. 7 inquires about the use of the house “prior” to the date of the fire. To support a judgment for appellee there must be a jury finding of use that increased the hazard over that of a tenant dwelling “at the time” of the fire; the increased hazard must still exist at the time of the loss. Another thing, the record does not show whether or not the sum of money appellant had paid to appellee for the policy was insufficient to pay the alleged increased rate on the policy from the date the change of use was made until the date of the fire. There being no evidence of fraud, or offer of refund of any unearned premium on the policy, appellee may be estopped to deny liability. The law will not allow an insurance company to collect a premium on a policy, keep the premium and defeat any part of its liability. I would reverse the judgment of the trial court and remand the cause. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766125. Public record. Not legal advice.