American Indemnity Co. v. Martin

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: American Indemnity Co. v. Martin, 84 S.W.2d 697, 126 Tex. 73 (Tex. 1935)
• Decision Date: 17 July 1935
• Docket Number: No. 1884-6410.,1884-6410.
• Parties: AMERICAN INDEMNITY CO. v. MARTIN et al.

84 S.W.2d 697

AMERICAN INDEMNITY CO. v. MARTIN et al.

No. 1884-6410.

Commission of Appeals of Texas, Section A.

July 17, 1935.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by W. B. Martin against the American Indemnity Company and another. Judgment for plaintiff was reversed and remanded in part by the Court of Civil Appeals, 54 S.W.(2d) 542, and the named defendant brings error.

Judgment of Court of Civil Appeals reversed in part, and cause remanded in its entirety to the trial court.

Seay, Seay, Malone & Lipscomb, of Dallas, for plaintiff in error.

D. C. Biggers and Roy W. McDonald, both of Dallas, for defendants in error.

HICKMAN, Commissioner.

In the trial court W. B. Martin recovered judgment for $7,000 against his brother, A. D. Martin, and American Indemnity Company for damages claimed to have been sustained by him in an automobile accident. A. D. Martin was the owner of the automobile, and the alleged negligent driver thereof was his wife, Mrs. Vera Martin. The indemnity company had issued a policy of insurance to A. D. Martin covering the automobile, and judgment ran against it on the theory that the policy was issued for the benefit of the injured party, who had the right to recover thereon in his suit to establish the liability of the assured. The indemnity company timely interposed a plea of misjoinder, both of parties and of causes of action, which plea was overruled and judgment rendered on the merits, as above indicated. The Court of Civil Appeals sustained the ruling of the trial court on the plea of misjoinder, but reversed the judgment as between W. B. Martin and the indemnity company upon other grounds not necessary here to mention. The judgment in favor of W. B. Martin against his brother, A. D. Martin, was left undisturbed. 54 S.W. (2d) 542.

Among other pertinent provisions of the policy was the following: "No action shall lie against the Company to recover for any loss under this policy until the amount of the damages for which the assured is liable is determined, either by final judgment against the Assured or by agreement between the Assured and the Plaintiff with the written consent of the Company. * * *"

It was error to overrule the plea of misjoinder. This court has foreclosed that question, and it would be profitless to launch anew into a discussion thereof. Kuntz v. Spence (Tex. Com. App.) 67 S.W.(2d) 254; Moxon v. Ray (Tex. Com. App.) 81 S.W.(2d) 488. In this connection, see, also, Grasso v. Cannon Ball Motor Freight Lines (Tex. Com. App.) 81 S. W.(2d) 482.

The principal question for decision relates to the character of judgment which should be entered. As above noted, the Court of Civil Appeals left undisturbed the judgment in favor of W. B. Martin against A. D. Martin. The reason assigned for so doing was that the latter did not appeal. It is argued by defendant in error that appellate courts have no jurisdiction to disturb judgments between nonappealing parties. This court has not heretofore so narrowly limited its powers. It is a sound proposition that appellate courts do not possess general revisory powers over trial courts. But they do possess, and regularly exercise, the power to make effective their rulings in sustaining assignments of error. When an assignment of error is...