Checker Cab & Baggage Co. v. Crone, 10596.

• Decision Date: 24 March 1938
• Docket Number: No. 10596.,10596.
• Citation: 117 S.W.2d 503
• Parties: CHECKER CAB & BAGGAGE CO. et al. v. CRONE.
• Court: Texas Court of Appeals

117 S.W.2d 503

CHECKER CAB & BAGGAGE CO. et al. v. CRONE.

No. 10596.

Court of Civil Appeals of Texas. Galveston.

March 24, 1938.

On Motions for Rehearing May 5, 1938.

Error from Harris County Court at Law; Phil D. Woodruff, Judge.

Action for damages received as result of violation of city ordinance prohibiting vehicles from approaching nearer than 10 feet to street cars under certain conditions by George Crone against the Checker Cab & Baggage Company and another. Judgment for plaintiff, and defendants bring error.

Reversed, and dismissed in part, and reversed and remanded for new trial in part.

Battaile, Burr & Holliday, of Houston, for plaintiffs in error.

Harry W. Freeman, of Houston, for defendant in error.

GRAVES, Justice.

This statement, thought to be correct, is a combination of those appearing in the briefs of the several parties hereto:

Plaintiff, George Crone, brought this action against Checker Cab & Baggage Company, operating taxi-cabs in the City of Houston, and The Southern Underwriters, surety on the taxi-cab bond, for damages alleged to have been suffered by him as the direct and proximate result of the violation of Section 1287, subdivision (d), of a city-ordinance of 1922, prohibiting vehicles from approaching nearer than 10 feet to street-cars under certain conditions, by the driver of one of the taxi-cabs owned and operated by that company, which violation was pleaded as negligence per se.

Among the extended provisions of the bond so executed by both defendants, those deemed directly material to the controversy here were in his verbis these:

"Now, therefore, if the said Checker Cab and Baggage Company of Harris County, Texas, shall pay all final judgments which may be rendered against (it, him or them), it for damages on account of death or injuries to property or person, including both passengers and the public, occasioned by the operation of the above described taxicab, then this obligation shall be null and void, otherwise it shall remain in full force and effect."

"This bond, while made payable to the Mayor of the City of Houston, and his successors in office, shall be considered to be for the use and benefit of any person or persons entitled thereto by reason of any injury sustained through the operation of such vehicles as hereinabove set forth, and may be sued upon by such person or persons, or their legal representatives, directly without joining the Mayor of the City of Houston. This obligation is performable in Harris County, Texas, and any and all suits which may be instituted and prosecuted to final judgment against either the principal or the surety hereon, or both, in any court in Harris County, Texas, which would, in the absence of any statute fixing the venue of such suit, have jurisdiction of the same, and all parties hereto, both principal and surety, waive the right, if any they have, to have said suit or suits instituted and prosecuted in any county than said Harris County, Texas."

After the overruling of a plea in abatement by the surety company, setting up a misjoinder of parties and causes of action, as well as the general demurrers of both defendants, the cause was submitted to a jury on nine special issues, inquiring in general substance whether the taxi-cab driver had approached nearer than 10 feet to the street-car in question, and if so, whether that action constituted willful negligence and a proximate cause of the accident involved; also whether the plaintiff at the time had been standing in front of that street-car, and if so, whether that action on his part had constituted negligence and a proximate cause of the accident; further, whether Crone had failed at the time to keep a proper lookout for automobiles going west on Texas Avenue, and if he had, whether that failure was a proximate cause of the accident; and, finally, what sum of money would adequately compensate him for the injuries he had sustained.

On the coming in of a verdict on such issues favorable to the plaintiff, the trial court entered judgment thereon—as well as upon what it found to be the undisputed evidence otherwise — in favor of the plaintiff and against both defendants for $523.00;

From that result below this appeal by both defendants, through writ of error, proceeds.

The surety company insists in this court, first, that its plea in abatement of the suit as against it was good and should have been sustained, in that the plain provisions of the quoted surety-bond, under which alone it was sued and held liable, only bound it to pay all such final judgments (within the bond's limits) as might be rendered against the Cab Company for damages occasioned by the operation of the taxi-cab covered thereby, and not primarily to pay such damages in advance of their having been reduced to such final judgment; that since no such final judgment has been rendered against the Cab Company, this suit being one merely for damages, with the objective of ultimately thereafter obtaining such a final judgment, no cause of action therein lay against it, the surety company; these authorities being cited and relied upon in support of that contention: Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482; Bransford v. Pageway Coaches, Tex.Com.App., 104 S.W.2d 471; Bluth v. Neeson, 127 Tex. 462, 94 S.W.2d 407.

This court is unable to see any substantive difference between the positions of the surety company under the statute involved in the Grasso Case, supra (section 13 of Vernon's Ann.Civ.St. Article 911b), and of the surety under the taxicab bond in question here; the first-quoted provision of this bond, by its express words and all fair implications to be drawn therefrom, "makes the basis of a suit by an injured party against the surety on the bond a `judgment' against the operator of the taxicab, and no authority for a suit against such surety is authorized, or has any basis whatever, unless there is a judgment. Under the very terms of the bond, a suit filed against the surety by an injured party before there is a judgment against the taxicab-operator is a suit without basis in law; as to the surety, therefore, plaintiff's position would not only constitute a misjoinder, where the surety and the taxicab-operator are prematurely joined in the same suit, but the suit as against the surety would be subject to a general demurrer, because no cause of action can be alleged against it, except on a final judgment."

Not only so, but it seems equally plain that neither of the further recitations, to the effect that it may be sued upon without making the mayor of Houston a party, and that the obligation of it is performable in Harris County, in anywise changes the undertaking of the surety company thereunder: the first of these merely permitting any person who has recovered a final judgment against the taxicab company for injuries occasioned through its operation to enforce such obligation without procuring the bringing of a suit for his benefit by the mayor; the second simply...