American Automobile Ins. Co. v. Struwe

• Decision Date: 14 January 1920
• Docket Number: (No. 6326.)
• Citation: 218 S.W. 534
• Parties: AMERICAN AUTOMOBILE INS. CO. et al. v. STRUWE.
• Court: Texas Court of Appeals

Page 534

218 S.W. 534

AMERICAN AUTOMOBILE INS. CO. et al. v. STRUWE.

(No. 6326.)

Court of Civil Appeals of Texas. San Antonio.

January 14, 1920.

Rehearing Denied February 11, 1920.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by C. L. Struwe against the American Automobile Insurance Company and A. F. Zunker. From a judgment for plaintiff, defendants appeal. Affirmed.

Wm. Aubrey and H. M. Aubrey, both of San Antonio, for appellants.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellee.

FLY, C. J.

This is a suit for damages instituted by appellee against the insurance company and A. F. Zunker, in which it was alleged that appellee had been injured through the negligence of Zunker in causing a collision between an automobile operated by the latter and a motorcycle operated by appellee. The grounds of negligence were that the automobile was operated at an illegal and dangerous rate of speed, that is, in excess of 25 miles an hour; that the automobile was operated on the left side of the street, in defiance of law; and that in passing the motorcycle the automobile was moving in an opposite direction to that in which the motorcycle was moving, and went at a higher rate of speed than 15 miles an hour. The insurance company was sued as liable under a bond or policy of insurance which bound the company to pay for damages incurred by the negligence of Zunker in the sum of $5,000. The cause was submitted to a jury on special issues, and upon the responses thereto judgment was rendered in favor of appellee as against both of the parties defendant, here as appellants, in the sum of $4,500.

There was evidence to sustain the findings of the jury to the effect that a collision occurred between an automobile operated by a driver for Zunker, the same being a service car, and a motorcycle operated by appellee, and that appellee was damaged in the sum found by the jury.

Appellants filed a plea in abatement on the grounds that the suit had been prematurely brought against the insurance company, and that it had been improperly joined with Zunker, as said insurance company, under the terms of the policy, was only liable after judgment had been awarded against Zunker. On the overruling of that plea is based the first assignment of error, which, however, seeks to add to the plea in abatement the further ground that—

"The suit is an improper joinder of a suit for damages arising from a tort against said A. F. Zunker with a suit upon a written contract, to wit, said contract, policy, or bond of insurance executed by said insurance company alone."

Of course, the addition to the plea cannot be considered, even if it were meritorious, but the plea must be considered that was presented to the trial judge. That plea was properly overruled, because under the laws of Texas a dual suit will always be avoided whenever all parties can have a fair trial when joined in one suit. Appellee, had he so desired, could have prosecuted his claim to judgment as against Zunker and then have sued on that judgment against the insurance company, but the law does not make it imperative that he should do so, but would permit him to dispose of the whole matter in one suit.

The rule has often been announced in Texas that when two causes of action are connected with each other, or grow out of the same transaction, they may be properly joined, and in such suit all parties against whom the plaintiff asserts a common or an alternative liability may be joined as defendants. Clegg v. Varnell, 18 Tex. 294; Love v. Keowne, 58 Tex. 191; Jones v. Ford, 60 Tex. 127; National Bank v. Texas Investment Co., 74 Tex. 421, 12 S. W. 101; Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1063. Even if appellants had presented any plea in abatement as to joinder of damages arising from a tort with those arising from a contract, it could not, under the facts of this case, be sustained, for the rule is that a suit may include an action for breach of contract and one for tort, provided they are connected with each other or grew out of the same transaction. Peoples v. Brockman, 153 S. W. 907. To the same effect is Insurance Co. v. Beneke, 53 S. W. 100, and various other authorities cited in the Peoples-Brockman Case.

Cases cited in which reference to insurance on the part of the defendant is condemned during a trial have no applicability to a case in which misjoinder is being urged. Those cases condemn any reference to an insurance company where it is not joined in the suit, on the ground that it might increase the damages against the defendant as to whom an action is being prosecuted. Under the clear provisions of the policy in this case it operated for the benefit of any injured person, and appellee was authorized to sue the insurance company, and the proposition that such suit could only be maintained by a suit separate from the party who was insured and who inflicted the injuries cannot be entertained under our system of judicial procedure.

The third assignment of error complains of the action of the court in refusing to suppress the answer of W. H. Henry to direct interrogatory No. 7, in his deposition taken in February, 1919, which was in regard to the rate of speed at which the automobile was moving when it collided with the motorcycle. The only statement under the assignment is as to an answer to a cross-interrogatory propounded to the witness, and is not in regard to the speed of the automobile, but as to whether Zunker turned to the right or left about the time of the collision, and the record shows that even the answer set out in the brief is not the one approved in bill of exceptions. Bill of exceptions No. 7, referred to by appellants to sustain the assignment, has no reference to the testimony complained of in the assignment. The assignment cannot be considered.

In assignments of error Nos. 4 and 5 complaint is made of the testimony of the witness Henry as to the location of appellee when struck, because the witness in former answers had testified that his view of appellee was obstructed when the collision took place. There was no error in the action of the court. No tenable ground of objection to the evidence was made. A deposition cannot be suppressed merely because a witness has contradicted other statements made by him. That was a matter that went to his credibility, and not to the competency of the evidence.

The sixth assignment of error is not followed by a statement and will not be considered.

The eleventh assignment of error is overruled. At least a portion, if not all, of the answer of the physician of which complaint was made was clearly admissible, and as the motion was to suppress the whole of the answer it was not error to refuse to strike out all of the answer. The question asked was: "Please state whether or not, in your opinion, the injuries you have described are serious and permanent." The answer was: "The injuries that have been described are capable of being permanent...