Bybee v. Fireman's Fund Ins. Co.

• Decision Date: 20 January 1960
• Docket Number: No. A-7353,A-7353
• Parties: D. C. BYBEE, Petitioner, v. FIREMAN'S FUND INS. CO., Respondent.
• Court: Texas Supreme Court

Page 910

331 S.W.2d 910

160 Tex. 429

D. C. BYBEE, Petitioner, v. FIREMAN'S FUND INS. CO., Respondent.

No. A-7353.

Supreme Court of Texas.

Jan. 20, 1960.

Rehearing Denied March 2, 1960.

Mark Callaway, Brownwood, for petitioner.

Ben D. Sudderth, Comanche, Jack C. Burroughs, Dallas, for respondent.

NORVELL, Justice.

We have concluded that the writ of error in this case was improvidently granted.

The opinion of the Court of Civil Appeals is reported under the name and style of Fireman's Fund Insurance Company v. Bybee in 322 S.W.2d 657. We refer to that opinion for a full statement of the case and shall confine ourselves to such factual statements from the record as will make clear the jurisdictional points upon which this opinion is based.

In his application for the writ, Bybee, as petitioner, relied upon subdivisions 2 and 6 of Article 1728, Vernon's Annotated Texas Civil Statutes, and asserted that this is not a case in which the jurisdiction of the Court of Civil Appeals is made final by statute.

Recovery was sought upon a policy issued by respondent, Fireman's Fund Insurance Company, which insured petitioner against hail damage to a peach crop. The policy provided that if it should be determined that a claim asserted by the insured was unfounded and that no liability existed under the provisions of the policy, the insured would reimburse the insurer for all investigation expenses. The insurance company brought suit under this clause of the policy and recovered judgment in a Dallas County justice court which recited and found that the respondent 'did not suffer any hail damage to his peach crop during any time the insurance policy was in full force and effect.' This judgment was plead in bar of the present suit. Such defense was overruled by the trial court but sustained by the Court of Civil Appeals.

It is our opinion that under the applicable authorities, no conflict of decisions within the meaning of Article 1728, § 2 is shown. Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825; Dockum v. Mercury Insurance Co., 134 Tex. 437, 135 S.W.2d 700; State v. Wynn, 157 Tex. 200, 301 S.W.2d 76. Under the grounds of jurisdiction set forth in the application no allegedly conflicting cases are cited. ¹ However, in the arguments contained in his brief, the petitioner cites and relies upon Dixon v. Watson, 52 Tex.Civ.App. 412, 115 S.W. 100, 102, wr. dism., as supporting their contention that the judgment of the justice court is not conclusive of the issue as to whether or not the petitioner suffered hail damage to his peach crop.

The distinction between Dixon v. Watson and the present case lies in the circumstances that in Dixon the issue relied upon as the basis of an estoppel by judgment was not squarely decided in the first suit, whereas in the present case such issue was directly presented and passed upon.

In Dixon v. Watson, it appeared that Watson had leased certain lands to Dixon. Watson thereafter sued Dixon in the county court upon an account for supplies and advances made by Watson to Dixon to enable the latter to make a crop, plus $140 due for rent on corn land. The total account was for $1,228.55, but Watson admitted a credit of $616.85 for hay delivered to him by Dixon. Dixon asserted that the case was one beyond the jurisdiction of the county court, but this contention was overruled and judgment was rendered in Watson's favor for $657.51.

Thereafter Dixon sued Watson for damages allegedly accruing to him by reason of Watson's breach of a provision in the lease contract under which Watson had obligated himself to purchase from Dixon certain hay grown upon the premises at specified prices. As a defense to this action, Watson pleaded that the judgment which he had recovered in the county court barred Dixon's action in the district court under the doctrine of res judicata.

This contention was sustained by the trial court but overruled by the Court of Civil Appeals. The latter court held that Dixon was not required to assert his claim for damages by reason of Watson's breach of the hay purchase agreement by way of reconvention in Watson's county court suit based upon advances made to Dixon, particularly in view of the fact that Dixon's breach of contract suit was for an amount in excess of the county court's jurisdiction. The Court then pointed out that no part of Dixon's cause of action for breach of the hay purchase agreement 'was in fact asserted or adjudicated in the county court, but the jury were expressly directed that they could not consider the same or any part thereof.'

In the present case the Court of Civil Appeals held that the issue of whether or not petitioner's peach crop had sustained hail damage had been determined by the justice court. The opinion stated that:

'A controlling fact issue in the District Court was whether Bybee (the petitioner) sustained damages to his peach crop. The same issue was also a controlling issue in the Dallas County Justice Court case and was, by the judgment of that court, determined unfavorably to Bybee.' (322 S.W.2d 658.)

Article 1728, § 6 is likewise unavailing as a basis of Supreme Court jurisdiction in this case. Expressly excluded from the operative provisions of said section 6 are 'those cases in which the jurisdiction of the Court of Civil Appeals is made final by statute.' Article 1821 provides that judgments of the Court of Civil Appeals shall be conclusive on the law and the facts in 'any civil case appealed from the County Court or from a District Court, when, under the Constitution a County Court would have had original or appellate jurisdiction to try it, except in probate matters, and in cases involving the Revenue Laws of the State or validity or construction of a Statute.'

None of the exceptions to final jurisdiction in the Court of Civil Appeals above mentioned are applicable to this case and, as heretofore pointed out, a conflict of decisions has not been shown. Although the present case was actually tried in the district court, the pertinent inquiry is whether the cause was a civil case over which the county court would have had jurisdiction under the Constitution. Article 5, § 16, Texas Constitution, Vernon's Ann.St.

The petition alleged a cause of action based upon hail damage to a peach crop. It was alleged that the amount of insurance provided by the policy was $600. The only reference made in the petition to other sums was in the prayer wherein petitioner prayed that 'he have judgment for his damages, together with a 12% penalty for failure to pay said loss, and for a reasonable attorney's fee in the sum of at least Four Hundred Dollars ($400.00) in accordance with provisions of the Statutes of Texas in such cases made and provided. * * *'

The judgment of the District Court was for $600, the amount of the policy, plus interest. Such interest, however, if considered as damages for the retention of money, Schulz v. Tessman, 92 Tex. 488, 49 S.W. 1031, was insufficient to raise the amount of recovery above $1,000. The trial judge evidently failed to find statutory provision for the penalty and attorney's fees mentioned in the prayer.

We find ourselves in like position. When jurisdiction is dependent upon the amount in controversy, a mere unfounded claim to a penalty or attorney's fees will not serve to place the case within the exclusive jurisdiction of the district court. It may be that by the general reference to 'the provisions of the Statutes of Texas,' the pleader intended to invoke the provisions of Article 3.62, Vernon's Texas Insurance Code V.A.T.S. ² However, this article has application only to life, accident, life and accident, health and accident, or life, health and accident policies. Maryland Casualty Co. v. Hopper, Tex.Civ.App., 237 S.W.2d 411, no writ history, 24B Tex.Jur., 735, Insurance 3373.

It seems equally plain that a suit upon a hail damage insurance policy is not comprehended by Article 2226, Vernon's Ann.Tex.Stats. ³ No other statute that could possibly afford a basis for a statutory penalty or the recovery of attorney's fees in this case has been cited and we know of none.

Although the claims for penalty and attorney's fees were ill founded, they were nevertheless asserted and no exception was levelled against them in the District Court. While there is no question of the District Court's jurisdiction of the cause, it is nevertheless pertinent to an inquiry into this Court's jurisdiction to ascertain from an examination of the decided cases the position and importance of an exception in cases of this character. In other words, is the absence of an exception a controlling factor in the jurisdictional problem?

In the case of Connor v. Sewell, 1896, 90 Tex. 275, 38 S.W. 35, it appeared that the District Court had sustained a general demurrer to plaintiff's petition. The Court of Civil Appeals reversed and held that a cause of action had been stated. 23 S.W. 555. This Court dismissed the application for writ of error for want of jurisdiction because the petition would not support a recovery of exemplary damages and the amount of actual damages prayed for amounted to only $575. The distinction between the claim for actual damages on one hand and exemplary damages on the other was raised for the first time by this Court when it was called upon to determine its jurisdiction of the application for writ of error. Chief Justice Gaines stated in the opinion that:

'We therefore conclude that the averments in the petition do not authorize a recovery of exemplary damages. It results that, so far as the question of jurisdiction is concerned, the case is the same as if the plaintiff had declared upon a promissory note for $575, and had claimed a recovery not only of his debt, but also exemplary damages for the unlawful refusal to pay it. It is clear that in such a case the question of jurisdiction would be determined by the principal of the debt. In this case it is fixed by actual damages claimed, and the suit...