American Fidelity & Casualty Co. v. Williams

• Decision Date: 03 December 1930
• Docket Number: No. 3491.,3491.
• Citation: 34 S.W.2d 396
• Parties: AMERICAN FIDELITY & CASUALTY CO., Inc., v. WILLIAMS et al.
• Court: Texas Court of Appeals

34 S.W.2d 396

AMERICAN FIDELITY & CASUALTY CO., Inc., v. WILLIAMS et al.

No. 3491.

Court of Civil Appeals of Texas. Amarillo.

December 3, 1930.

Rehearing Denied January 14, 1931.

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Action by F. V. Williams and wife against the American Fidelity & Casualty Company, Incorporated, and another. Judgment for plaintiff, and defendant named appeals.

Affirmed.

Alfred M. Scott and Douglas & Spiller, all of Lubbock, and John H. Awtry, of Dallas, for appellant.

Vickers & Campbell, of Lubbock, for appellees F. V. Williams and wife.

Benson & Benson, of Lubbock, for appellee Ed C. Abbott.

HALL, C. J.

Ed C. Abbott was licensed as a "motor bus company" under the provisions of Vernon's Annotated Civil Statutes, art. 911a, which relates to the regulation of motor bus transportation. He was engaged in operating a line of motor busses from Lubbock to Spur, Tex., over a specified route. On June 1, 1928, one of Abbott's motor busses, while being operated by a son, an employee, on Tenth street, in the city of Lubbock, ran over the minor daughter of appellees F. V. Williams and Sarah Williams. The child died the same night, and Williams and wife recovered a judgment against Abbott on January 23, 1929, decreeing a recovery of $2,000 in favor of F. V. Williams and $3,000 in favor of his wife. The appellant herein, the casualty company, was made a party defendant to that action. It filed its plea in abatement, which was sustained by the court. The appellant casualty company had theretofore issued its policy under the provisions of the Texas Motor Bus Law insuring Abbott against liability on account of injuries "caused by the operation of the busses used in his business. Recovery upon said policy shall be limited to $5,000.00 for any one accident to any one person."

After Williams and wife recovered the judgment hereinbefore mentioned against Abbott, they filed this suit against Abbott and against the appellant casualty company to recover the amount of the judgment which they had theretofore recovered against Abbott, alleging that the judgment had become final, that execution had been issued thereon and returned nulla bona. Williams and wife alleged that on June 1, 1928, the casualty company had insured its codefendant Abbott against loss imposed by law upon him arising and resulting from claims against him for damages by reason of his ownership, maintenance, and operation of his motor-propelled vehicles which he operated in his business of carrying passengers for hire in Lubbock county and other counties under and by virtue of what is known as the Motor Bus Transportation Law of the state of Texas, being chapter 270, page 399, Acts of the 40th Legislature (Vernon's Ann. Civ. St. art. 911a). That such insurance policy was in force on June 1, 1928, indemnifying the said Abbott to the extent of $5,000, and contained indorsements which specifically provided, as required by law, that said casualty company would pay all damages recovered against Abbott by reason of personal injuries to any one arising out of the actual operation of any motor bus without regard to the solvency or insolvency of Abbott, and that any judgment creditor of Abbott on a claim for such personal injuries should have a right of action against the insurer to recover the amount of such judgment rendered against Abbott in a sum not exceeding $5,000. The petition then sets out the facts concerning the death of Ella Mae Williams, the minor daughter of the appellees. That thereafter on August 18, 1928, Williams and wife, the parents of said child, sued Abbott in the Ninety-Ninth district court of Lubbock county in cause No. 3404, and recovered separate judgments aggregating $5,000 against Abbott. That thereafter, in due time, execution was issued upon said judgment and was returned by the sheriff of Lubbock county unsatisfied. The prayer is that they have judgment against the casualty company for the amounts of their respective recoveries against Abbott, with 6 per cent. interest from the date of said judgment and all costs. That as to the defendant Abbott they prayed that their judgment against him be in all things confirmed, and that, in the event they recovered against the casualty company, said judgment against Abbott be satisfied and canceled.

The casualty company answered, alleging a misjoinder of parties defendant, that this action had been prematurely brought and should be abated for the reason that under the laws of Texas no execution could lawfully be issued on the judgment which the appellees had recovered against Abbott. That neither plaintiffs nor the sheriff of Lubbock county had ever attempted in good faith to collect the amount of said judgment or to find and levy upon any property belonging to the said Abbott, and, until a bona fide effort has been made to collect said judgment against Abbott, this suit is prematurely filed.

The policy is attached as an exhibit to the answer, and the company denies its liability in any amount, alleging that, under the terms of the Motor Bus Transportation Law, the defendant Abbott was required to operate his vehicles as a common carrier for hire under the rules and regulations of the railroad commission of Texas and subject at all times thereto. That such law contemplated that each licensee should operate motor busses only over strictly defined and designated routes between designated points and for fixed rates and further upon time schedules authorized by the said railroad commission. That the said Abbott, operating under the name of Lone Star State, holding certificate No. 142 issued by the railroad commission, was permitted to operate a line of motor busses along the usual and mainly traveled streets and highways between Lubbock and Spur, Tex. That aside from this the said Abbott had no permit authorizing him to operate any vehicle for transportation of passengers for hire, and that said policy and Motor Bus Law did not cover any vehicles not so engaged and operating. That a rider had been attached to said policy describing the vehicles to be operated by Abbott under his license. That the policy provided that said vehicles should be used only for transportation of passengers for compensation and would be operated on schedules over authorized routes within the state of Texas, and that said insurance should cover no other use or operation. That all of such indorsements, provisions, and riders were in effect at the time of the accident which resulted in the death of appellees' minor daughter, and that under said policy Abbott could only operate three vehicles at the same time. That on the day of the accident Abbott was operating the maximum of vehicles covered by the policy upon his designated route and there was no occasion for the substitution of any other vehicle or any emergency vehicle in lieu of any of the three regular vehicles actually in operation and under coverage. That during such time Abbott had been using a certain Chrysler sedan, which by the terms of the policy could be used as an emergency substitute for a regular vehicle. That Abbott had used this vehicle mainly for private and family purposes, occasionally calling the same into requisition as a substitute car. That said policy covered said Chrysler sedan only when the same was being used in lieu of one of the regular motor busses in the actual transportation of passengers for hire under approved tariff rates. That on the day and at the time of the accident, Abbott's child was sick in Lubbock and he decided to procure the services of a trained nurse then residing in Dallas, to whom the defendant's son Alton Abbott was engaged to be married. That at the request of Alton Abbott, Ed C. Abbott permitted his son to take the Chrysler sedan to Dallas to bring said nurse to Lubbock, and that Alton Abbott drove said Chrysler car into the western portion of the city of Lubbock to No. 2407 Tenth street, which was more than a mile west of the Lubbock Bus Terminal Station and from any designated or authorized route over which Abbott could operate his busses, and while there the said Alton Abbott backed said Chrysler sedan over the appellees' child, resulting in the death of said child that night. That at said time Alton Abbott was not engaged in the transportation of passengers for hire, did not have any passengers aboard nor any definite arrangement for passengers, but was on a personal mission looking for a friend to accompany him on his trip to Dallas. That in making said trip to Dallas, Alton Abbott drove said automobile over an entirely different route from that designated in the said Abbott's permit.

It is further alleged that Abbott failed and refused to co-operate with the defendant casualty company in its efforts to investigate the accident, and attempted to mislead the defendant's agent into believing that the accident occurred under such circumstances as to render the defendant liable, and openly announced to defendant that, if it pressed the investigation further, and the matter came to a contest, that he (Abbott) would take sides with the plaintiffs. That said threat had been carried into effect by Abbott in flagrant violation of the obligations of said policy, thereby forfeiting his right, if any, to recover thereon. That defendant casualty company endeavored to get Abbott to execute a nonwaiver agreement under which said company could defend said suit in the name and on behalf of Abbott at its own expense without waiving any of the defenses it might have as to the defendant Abbott. That Abbott refused to execute said nonwaiver agreement and insisted that the defendant company remain as a defendant in said suit, which defendant refused to do. That Abbott took advantage of the enforced absence of the defendant and its counsel and permitted the proceedings against him to result in a judgment. That he did not interpose any proper defenses, and that the issue of coverage by...