Bluth v. Neeson

• Decision Date: 13 May 1936
• Docket Number: No. 6666.,6666.
• Citation: 94 S.W.2d 407
• Parties: BLUTH v. NEESON et al.
• Court: Texas Supreme Court

Page 407

94 S.W.2d 407

BLUTH v. NEESON et al.

No. 6666.

Supreme Court of Texas.

May 13, 1936.

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

Suit by C. E. Bluth, individually and as next friend, and guardian for his minor son, Virgil Bluth, against J. T. Neeson and another. To review a judgment of the Court of Civil Appeals [63 S.W.(2d) 1046], which reversed and remanded a judgment for plaintiff, plaintiff and defendants bring error.

Affirmed.

Ernest Guinn and Claude Lawrence, both of El Paso, for plaintiff in error.

Lea & Edwards, of El Paso, for defendants in error.

CRITZ, Justice.

C. E. Bluth, individually and as next friend of Virgil Bluth, his minor son, sued J. T. Neeson for damages arising out of a collision between an automobile belonging to Neeson, and driven by his minor daughter, and a motorcycle driven by Virgil Bluth. The collision occurred on a public street in the city of El Paso. It is alleged that J. T. Neeson owned and maintained the automobile for the business and pleasure of himself and the members of his family. It is alleged that Neeson's said minor daughter, at the time of the accident, was a member of his family, and was driving such automobile with his knowledge and consent. The petition then alleges negligence on the part of the daughter proximately causing the damages complained of, but contains no allegations that would constitute J. T. Neeson liable, unless the family purpose allegations do so.

Neeson carried insurance on the car in question with Employers' Casualty Company, an insurance corporation. The casualty company was joined as a party defendant to the suit as such insurer.

Neeson and the casualty company both pleaded in abatement, setting up improper joinder of parties defendant and causes of action. Also, the objection of improper joinder was raised by proper special exceptions to the petition. The plea in abatement and exceptions were all overruled. The case was finally tried in the district court, and resulted in a judgment against J. T. Neeson and the casualty company. On appeal by Neeson and the casualty company, this judgment was reversed and the cause remanded by the Court of Civil Appeals at El Paso. 63 S.W.(2d) 1046. Neeson and the casualty company on the one hand, and Bluth on the other, have prosecuted separate writs of error to this court. Both applications were granted.

We shall first consider the Bluth application. As already stated, Neeson and the casualty company contended in the two lower courts that the casualty company could not be joined as a defendant in the suit against Neeson. The trial court overruled this contention, but the Court of Civil Appeals sustained it. It is this ruling that Bluth complains of here.

The policy of insurance here involved was issued by the casualty company to J. T. Neeson. It covers the car in question here, and contains the following provisions that are pertinent to a decision of the question of joinder under discussion:

"Bodily Injury Liability.

"Agreement `A' To indemnify the Assured against loss from the liability imposed upon him by law for bodily injury, including death at any time resulting therefrom (herein called `Bodily Injury') Accidentally sustained by any person or persons if caused by the ownership, maintenance or use of the automobile described in the Declarations for the purpose therein stated. The Company's limit of liability, regardless of the number of Assured, as respects each automobile described, for bodily injury to or death of one person shall be as first set forth in Item 1, Paragraph `C' of the Declarations and subject to that limit for each person, its total liability on account of any one accident resulting in bodily injury to or death of more than one person, shall be as second set forth in said item.

"Property Damage Liability.

"Agreement `B' To indemnify the Assured against loss from the liability imposed upon him by law for accidental injury to or destruction of the property of others including the loss of use thereof (herein called `property damage') if caused by the ownership,...