I have been unable to adopt the reasoning or conclusion of my Associate, Mr. Justice DUNKLIN. As I understand, his conclusion is based upon the ground that the appellee's petition *Page 511 amounts to a declaration upon a contract of insurance covering appellee's newly acquired eight-cylinder car for the sum of $2,500. I do not think appellee's petition should be given so strict a construction.
Omitting formal parts, and after setting forth a custom on appellant's part to execute preliminary contracts of insurance, referred to as binders, the issuance of the policy covering the Packard six car, the custom theretofore obtaining between the parties relating to the issuance of insurance policies, etc., the petition alleged that the newly acquired eight-cylinder car was worth $3,500, and "that plaintiff acquired said last mentioned car at Abilene, and at once wired his brother, Lee Flowers, in Wichita Falls, giving him description of the newly acquired Packard 8 car and telling him to see or 'phone Robbins Company and instruct them to cancel the policy on the car which plaintiff had previously owned, viz, the Packard 6, and to cover the newly acquired car, viz., the Packard 8 roadster. That plaintiff's brother, Lee Flowers, did as requested, 'phoned the Robbins Company and apprised them fully of the fact that this plaintiff no longer owned the Packard 6 car but in place of it had acquired and wished fully covered the Packard 8 car, in the sum of $2,500; this being the usual form and extent of negotiations in the vicinity of Wichita Falls in obtaining such contracts, and some having been observed between this plaintiff and said Robbins Company and Southern Casualty Company on previous occasions.
"Plaintiff shows that said Robbins Company informed Lee Flowers, plaintiff's brother and agent, that the policy on the Packard 6 car was being cancelled and same would be transferred to and applied on the Packard 8 car, and asked said Lee Flowers for the engine number and the serial number of the Packard 8 car, which said Lee Flowers for the amount was unable to accurately give, and the defendant Robbins Company then said that this could be had later, and said Lee Flowers then asked if the newly acquired Packard 8 car was covered, and was told by the Robbins Company that same was fully covered and that a binder from Southern Casualty Company was getting placed, meaning thereby that an informal binder contract of insurance was being by them issued against the Southern Casualty Company, binding said company to issue a formal policy to this plaintiff, J. G. Flowers, granting him full coverage on his Packard 8 car above described in the sum of $2500 and that when issued the new policy would be identically like that issued to plaintiff on the Packard 6 car, of February 26, 1927, except that the same would be in the sum of $2500 and would cover his Packard 8 roadster whereas the policy issued February 26, 1927, had covered his Packard 6 car in the sum of $1200.00."
It is thus seen that the petition sets forth the words used — just what occurred at the time of the telephone conversation — and these are the facts that constitute the contract. The conclusion of the pleader that the words used meant insurance in the sum of $2,500 is but a legal conclusion which is not of controlling effect in determining appellee's right. The subsequent reference in the petition to the contract as one for insurance in the sum of $2,500 is referable, I think, to the original conclusion already indicated, and amounts to no more than mere conclusion of the pleader. The sufficiency of appellee's petition was not questioned by any demurrer or exception called to the attention of the trial court, and it seems to me that it is now too late to adopt a strict construction of the petition. While the telephone conversation between the parties included no specific amount of insurance to be carried, the agent did assure appellee that his car was fully covered, from which it is reasonable to imply, as the trial court did, that the company at least bound itself in a reasonable amount, and there is no contention that the award of the court is excessive.
The variance between the actionable facts alleged and the proof, if the question can be so viewed, is certainly not such as was misleading, and hence now ineffective. See National Bank v. Stephenson, 82 Tex. 435,18 S.W. 583.
On the whole, I think the conclusions of fact and law of the trial court should be adopted and the judgment affirmed.