Abe I Brilling Ins. Agency v. Hale

Court of Civil Appeals of Texas, Dallas.

ABE I. BRILLING INSURANCE AGENCY, Appellant,

v.

Glen HALE d/b/a South Lamar Iron & Steel, Appellee.

No. 20170.

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April 15, 1980.

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Rehearing Denied June 25, 1980.

Attorneys & Firms

*404 Stanley D. Biderman, Austin, for appellant.

Wayne A. Melton, Dallas, for appellee.

Before AKIN, CARVER and HUMPHREYS, JJ.

Opinion

HUMPHREYS, Justice.

Abe I. Brilling Insurance Agency, appellant, sued Glen Hale, doing business as South Lamar Iron & Steel, to recover premiums allegedly due on two insurance policies. Brilling abandoned his contract action and proceeded to try the case as a suit on a sworn account pursuant to Rule 185.

Brilling’s pleadings alleged an action on an account based on premiums due on workers’ compensation and general liability insurance policies sold to Hale. The account attached to his first petition is three pages long. The first two pages appear to be the itemized account of the premiums paid on the policies, with the dates, type of policy, premium, payment, and balance listed. The last entry of the two pages shows a zero balance. The third page contains three entries:

------------------------------------------------------------------------------- Policy Property Covered -------------------------------------------Date Expiration Premium Credits Number Company Description Location-------------------------------------------------------------------------------Aug 6 18395007628 FINAL AUDIT 3,388.00 76 W/CAug 6 1CC844777 USFA FINAL AUDIT 293.00 76 LIA & PBB DAMAGEJun 30 3950-007628 USF&G DIVIDEND 5/76-77 934.00 77 CREDIT

Brilling argues that the trial court’s judgment was error because it brought suit on a sworn account pursuant to Rule 185.

Crowe v. Union Automobile Insurance Co., 79 S.W.2d 168, 170-71 (Tex.Civ.App. El Paso 1935, writ dism’d).

The account in this case is that contained on page 3 of the attachment to the petition. The first two pages cannot be considered because they show that all premiums were paid in full. Brilling is suing for premiums alleged to be due on the policies resulting from a subsequent audit. No specifics or details are given as to how these figures were arrived at, nor can we determine from Brilling’s petition why it is contended that Hale underpaid the premiums on these policies. This is not an account in the itemized form required under Rule 185. Consequently, Brilling’s remaining points on the sufficiency of the answer need not be considered.

Affirmed.