American Indemnity Co. v. Fellbaum

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: American Indemnity Co. v. Fellbaum, 225 S.W. 873 (Tex. App. 1920)
• Decision Date: 17 November 1920
• Docket Number: (No. 6448.)
• Parties: AMERICAN INDEMNITY CO. v. FELLBAUM.

Page 873

225 S.W. 873

AMERICAN INDEMNITY CO. v. FELLBAUM.

(No. 6448.)

Court of Civil Appeals of Texas. San Antonio.

November 17, 1920.

Rehearing Denied. December 22, 1920.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Suit by Ernest Fellbaum against the American Indemnity Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Arnold & Cozby, of San Antonio, for appellant.

McAskill & Mauermann, 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 by appellee, as administrator of the estate of M. D. Carr, deceased, against appellant, in which it is alleged that a judgment was obtained against appellee on March 3, 1917, by Douglas Stough for $4,000; that the judgment was based upon bodily injuries inflicted by M. D. Carr on the said Stough on or about September 27, 1915; that previously said M. D. Carr had obtained from the appellant a policy of insurance which indemnified him against such claims; and that such policy was in full force and effect when the injuries were inflicted. It was further alleged that the suit against him was pending when M. D. Carr died, and appellee was appointed administrator of his estate; that appellant took charge of the defense in said suit, as provided in the policy of insurance, both for Carr and the appellee, and had exclusive control of said suit. It was alleged that the judgment had been obtained and duly allowed and approved as a claim against the estate of M. D. Carr, and was paid in full by the administrator in the sum of $4,480. The defenses were that the cause of action died with M. D. Carr, and that the administrator borrowed money, without power or authority to do so, to pay off the judgment, and his action was not binding on the estate, and the note given for the borrowed money was not enforceable, and therefore the estate had sustained no loss. The cause was tried by the court and judgment rendered in favor of appellee for $4,760.

Although all the facts were agreed to by both parties, appellant requested the trial judge to file his findings of fact and conclusions of law; but, after the court had complied with the request, appellant sought to strike all out except the introductory sentence that, "The facts are found as set out in the agreed statement of facts." The first and second assignments of error complain of certain conclusions of fact to the effect that the note given by appellee to pay the judgment was executed in good faith and that the judgment was paid with the proceeds of the note. These conclusions were reasonably deducible from facts agreed to by appellant, which are as follows:

"The said Ernest Fellbaum, as administrator of said estate, borrowed from D. A. McAskill and H. C. Carter the sum of $4,480, said McAskill and Carter each giving Fellbaum, as administrator, their checks in the sum of $2,240 each; and to evidence said indebtedness, the said Ernest Fellbaum, as administrator, thereupon at the same time executed and delivered to the said D. A. McAskill and H. C. Carter his promissory note for said sum of $4,480, signed by Ernest Fellbaum as administrator of said estate and payable to the order of the said D. A. McAskill and H. C. Carter, a copy of which said note is hereto attached, marked `Exhibit C' and made a part hereof. The said note has never been paid. Upon receiving and cashing said checks at the bank and upon receipt of said $4,480 in cash from the bank, the said Ernest Fellbaum, administrator, took said money and paid it to Douglas Stough in full payment of her said judgment, and said Douglas Stough thereupon duly executed and delivered to said Fellbaum, administrator, a release of said judgment, a copy of which is hereto attached and marked `Exhibit D.' Said money was so handed by the administrator to the said Douglas Stough on said March 14, 1919, in the office of H. C. Carter, and at that time there was present the said Ernest Fellbaum, administrator, and H. C. Carter and Douglas Stough; and said administrator thereupon left, having received the release of the judgment, and thereupon the said Douglas Stough immediately delivered the said $4,480 in cash to the said H. C. Carter upon an agreement between the said Douglas Stough and the said McAskill and Carter that said sum of money was to...