Jack Criswell Lincoln Mercury, Inc. v. Tsichlis

STEPHENSON, Justice,

dissenting.

I respectfully dissent, and would enter the judgment the trial court should have entered which is to allow plaintiff to recover his actual damages and attorney’s fee. No recovery for exemplary damages is recoverable in a breach of contract ease. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629; and McDonough v. Zamora, 338 S.W.2d 507 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.).

This is a breach of contract case. There are no pleadings of negligent acts or omissions on the part of defendant, no evidence of negligence, and no submission of issues to the jury of any negligent act or omission.

*260The two issues first submitted to the jury demonstrate clearly the type of cause of action plaintiff was relying upon. The jury was asked first if defendant agreed (contract) to procure insurance for plaintiff. Then the jury asked if defendant failed to procure the insurance (breach of contract). Those two issues are not followed by negligence or proximate cause issues. An issue was submitted asking whether the failure to procure the insurance was in heedless and reckless disregard of plaintiff’s rights. Then the jury found actual and exemplary damages. These jury findings establish a cause of action for breach of contract with awards for actual damages and attorney’s fees.

Defendant’s motion for new trial complains that the trial court erred in submitting the issues on punitive damages because there were no pleadings, no evidence, and insufficient evidence to support such issues.

Defendant’s points of error, interpreted in their most liberal light, raise no evidence and insufficient evidence points as to the issues on exemplary damages. See Tex.R. Civ.P. 418. This provides in part that a point of error is sufficient if it directs the court to the error relied upon. An unbroken line of authorities follow the rule that the statement, argument, and authorities will be considered by the appellate court in its determination of the claimed reversible error. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. See also Tex.R.Civ.P. 422.

I find no evidence to support a finding that defendant’s failure to procure the insurance was in heedless and reckless disregard of plaintiff’s rights under the pleadings, evidence and submission of this case.