Texas Van Lines, Inc. v. Godfrey

On Motion for Rehearing.

In its motion for rehearing appellant says that we erred in a material way in the findings of fact contained in our opinion.

In support of its contention appellant asserts that (1) there was a controversy as to whether appellees learned of appellant’s storage plan through a television program or a radio program; (2) the fire at the warehouse took place the day after the return of the Godfreys from Colorado, not the day before their return; (3) Mrs. Godfrey went to her daughter’s house the night of their return from Colorado, and picked up the mail which had accumulated during their absence, including the warehouse receipt; (4) appellant does not contend it was entitled to judgment over against Maryland Casualty Company because, of that Company’s failure to issue its “Advice of Insurance” certificate. It contends that if appellant itself was authorized as an agent of Maryland Casualty Company to issue the “Advice of Insurance” certificate, and the insurance was actually provided for appellee then the Maryland Casualty Company was liable; and (5) the record shows Godfrey discussed payment only with the truck driver, who was not authorized to collect, not with the warehouse representatives, who first called at the Godfrey’s residence.

The above errors in our findings, if they were errors, are immaterial to the issues in this case, and in no way affect the correctness of our decision to affirm the trial Court’s judgment. For example it is immaterial whether the warehouse fire took place the day after the return of the God-freys from Colorado, or the day before their return; or whether the Godfreys became interested in appellant’s “Summer Special” storage plan through a television or radio advertisement.

The testimony as to some of the matters in question is conflicting. Mrs. Godfrey testified that she and her husband became interested through a television advertisement; appellant’s witnesses testified that appellant had no television advertisement, but did have a radio advertisement. Mrs. Godfrey testified that her husband, in her presence, offered to pay the charges to Mr. McIntyre, appellant’s representative with whom appellee made the oral agreement to store the furniture; Mr. Godfrey testified he made the offer of payment to appellant’s truck driver. In our original opinion we set out Mrs. Godfrey’s testimony verbatim on the point.

If such conflicts in the evidence should be considered material, we must point out that it was for the trial court, not this court, to resolve said conflicts. The record contains no written, findings of fact and conclusions of law prepared and filed pursuant to Rule 296 Texas Rules of Civil Procedure. However, the trial Court in uttering judgment from the bench at the conclusion of the trial, did orally make certain findings of fact. These oral findings did not cover the conflicts above discussed. But it will be presumed that the court made such implied findings as were necessary to support the judgment. National Bond & Investment Co. v. Atkinson, Tex.Civ.App., 254 S.W.2d 885.

The motion for rehearing will be overruled.