Century Lloyds v. Barnett, 3081

• Decision Date: 18 June 1953
• Docket Number: No. 3081,3081
• Citation: 259 S.W.2d 768
• Parties: CENTURY LLOYDS v. BARNETT et al.
• Court: Texas Court of Appeals

Page 768

259 S.W.2d 768

CENTURY LLOYDS v.BARNETT et al.

No. 3081.

Court of Civil Appeals of Texas, Waco.

June 18, 1953.

Rehearing Denied July 16, 1953.

Chaney & Davenport, Dallas, John C. Ridley and Edwin H. Frank, Jr., Houston, for appellant.

LeGrand J. Woods and Kirkham & Graham, Corpus Christi, for appellees.

TIREY, Justice.

The appellees brought this suit in garnishment after judgment against the appellant.On January 11, 1951, the appellees recovered judgment in the District Court of Nueces County against Homer Green for the sum of $12,500 for injuries sustained by Mrs. Barnett in an automobile accident.Green excepted to the judgment but did not prosecute his appeal.Thereafter, on May 16, 1951, appellees filed their application for writ of garnishment in the District Court of Nueces County, which application, among other things, stated that they had reason to believe that Century Lloyds is indebted to defendantHomer Green.Appellant filed its plea of privilege to be sued in Harris County, which plea was sustained and the cause transferred to the District Court of Harris County.Thereafter Century Lloyds answered to the effect that it was not indebted to defendantHomer Green and this answer was traversed by the appellees.Pertinent to this discussion appellees alleged that appellant had theretofore issued its automobile policy No. 4031, which policy provided that the automobile used by Homer Green for business and pleasure would be covered by insurance as provided in the policy; that such policy was in full force and effect at the time Green's car was being driven by him in the city limits of Corpus Christi, Nueces County, and that it collided with a car being driven by Leroy S. Williams at which time Josephine Barnett, wife of plaintiff, was a passenger or guest and at which time Mrs. Barnett received injuries, which claim had been reduced to judgment as above stated.Homer Green seasonably filed his plea of intervention in this garnishment suit and alleged that appellant breached its obligation in the policy to defend him in the foregoing suit, and that he had obligated himself to pay the sum of $500 as a reasonable fee to his attorney for services to defendant him in the suit brought against him by appellees and asked that appellant be required to pay the full amount of the policy to apply to the payment of the judgment rendered against him and he asked for his attorney's fees and for general relief.Pertinent to this discussion appellant averred that it was not indebted to Homer Green by reason of the contract of insurance it had issued and delivered to him because of certain defaults made by Green and these issues were properly tendered by the pleadings.The court overruled all motions for instructed verdict.

The jury found substantially (1) that Green's failure to appear in Corpus Christi on January 8, 1951 for the purpose of the trial of the Barnett case against him was because Century Lloyds had failed to advance him his expenses of travel; (2) that prior to January 8, 1951 Century Lloyds had promised and agreed to advance Green his expenses of travel; (3) that Green's failure to appear in Corpus Christi on January 8, 1951 for the purpose of the trial of his case was not because Century Lloyds had failed to pay him for his loss of earnings; (4) that Green was not financially unable to travel to Corpus Christi at his own expense for the purpose of attending the trial of his case on January 8, 1951; (5) that the sum of $500 would reasonably compensate the attorney for Green in the defense of his case at Corpus Christi.Judgment was rendered against appellant in accord with the findings of the jury and appellant seasonably perfected its appeal.

Appellant has assailed the judgment on six points.They are to the effect: (1) that since the insured failed to forward immediately to the company the citation served upon him in the main suit, the company was relieved from any liability; (2) that the insurer is not liable because Green failed to cooperate with it in the defense of his suit by refusing to appear from the trial of the suit brought against him; (3) that the insured's conduct complained of was not an accident within the meaning of the policy; (4) that the judgment rendered is contrary and without support in the pleadings; (5) that the judgment rendered is contrary to the undisputed facts and verdict of the jury; and (6) that the court erred in refusing to submit garnishee's requested issue as to whether or not its insured had made any agreement with the plaintiffs to its prejudice.We are not in accord with any of these views.

In reply appellees say in effect (1) as a matter of law the delay of Green in forwarding citation was harmless in immaterial and that appellant was in no way prejudiced thereby; (2 and 3)appellant was not prejudiced by Green's nonappearance on January 8th because the case was re-set and did not go to trial, and because the jury found that Green's nonappearance was due to the fault of appellant in breaching its express agreement to send him traveling expenses; (4) that negligent acts of collision by Green constituted an accident within the meaning of the policy and required the carrier to defendant the action and pay any judgment rendered within the policy limits; (5) the pleadings, evidence and verdict of the jury are all amply supported in accordance with the judgment rendered; and (6) that the evidence did not tender an issue that the carrier's insured had made an agreement with plaintiffs to the carrier's prejudice.We are in accord with these views.

A statement is necessary.Testimony was tendered to the effect that Josephine Barnett sustained personal injuries as the result of an automobile collision on June 13, 1950 in Corpus Christi, at which time the car in which she was riding as a passenger came into collision with one owned and operated by Homer Green; that Green carried a liability insurance policy with Century Lloyds; the accident occurred within the city limits of Corpus Christi in the early part of the night; that next day the Meers Claim Service began to investigate the accident and contacted Homer Green and he gave them a detailed written statement.Meers Claim Service was acting upon the instructions of Century Lloyds.After the Meers Claim Service completed its investigation it began negotiations for settlement of the claim and was unsuccessful.Thereafter Barnett and wife filed suit against Homer Green.Homer Green was a rig builder and subsequent to the accident he was living at Snyder, Texas, engaged in his regular employment.Citation was served on him at Snyder on October 21, 1950 and answer should have been filed on November 13, 1950; however, no answer was filed on that date.On November 13, 1950 Green mailed the citation into the main office of Century Lloyds at Houston, where it was promptly received.Green did not have his policy with him in Snyder and did not recall the name and address of the insurance company and at that time he was working long hours and driving some 70 miles back and forth from a tourist court in Snyder where he was residing at that time.He did telephone the Corpus Christi agent who sold him the policy and obtained the name and address of his carrier and was instructed to mail the citation to the carrier at its Houston office.On November 15, 1950LeGrand Woods, attorney for plaintiffs, wrote to Century Lloyds to...