Cuellar v. Moore, 8933.

• Decision Date: 30 November 1932
• Docket Number: No. 8933.,8933.
• Citation: 55 S.W.2d 244
• Parties: CUELLAR et al. v. MOORE.
• Court: Texas Court of Appeals

Page 244

55 S.W.2d 244

CUELLAR et al. v. MOORE.

No. 8933.

Court of Civil Appeals of Texas. San Antonio.

November 30, 1932.

Appeal from District Court, Webb County; R. D. Wright, Judge.

Action by Mrs. J. V. Moore against Ramon Cuellar and others, in which the New Amsterdam Casualty Company was impleaded as a defendant, and in which the original defendants filed cross-action against the plaintiff. From an adverse judgment, the defendants appeal.

Judgment reversed, and cause remanded.

T. M. West and Nat L. Hardy, both of San Antonio, and M. J. Raymond, A. A. Alvarado, and F. B. Guerra, Jr., all of Laredo, for appellants.

Thos. H. Ward, of Laredo, for appellee.

SMITH, J.

Mrs. J. V. Moore was injured in a collision between her motorcar (which she was driving), and a car owned by Volpe Bros. (a partnership), and driven by Ramon Cuellar. The Volpe car was covered by a casualty insurance policy issued by the New Amsterdam Casualty Company.

Mrs. Moore first brought this action for personal injuries (sustained in said collision) against Volpe Bros. and Cuellar, but later impleaded the insurance company as well and sought to subject it to direct liability to her on account of its assurance to Volpe Bros. The latter, and their driver, Cuellar, reconvened and sought recovery against Mrs. Moore on account of injuries to the property of Volpe Bros. and the person of Cuellar.

In a trial without a jury the court below rendered judgment in favor of Mrs. Moore against all three defendants, jointly and severally, for $1,116.50 for injury to her car, but denied her any damages for personal injuries. The court also denied recovery to Volpe Bros. and Cuellar upon their cross-actions. Those defendants as well as the insurance company have appealed.

The appeal is controlled by the question of whether the insurance company was properly rendered accountable directly to Mrs. Moore because of its contract with Volpe Bros. We have concluded that she had no cause of action against the insurance company, and that the judgment must be reversed because of its joinder in the action.

The contract of insurance was made by and between Volpe Bros. and the insurance company and no others, whereby, in consideration of the premium paid by Volpe Bros. to the company, the latter insured the former "against loss from the liability imposed by law upon" Volpe Bros. on account of injury to the person or property of third persons through the operation of the assured's automobile described in the contract. The insurer was further obligated in said contract to investigate accidents covered by the contract, to negotiate settlement of claims, defend at its own expense and "in the name and on behalf of the assured any suit against" the latter on account of injuries to person or property, with the right reserved to the company to settle such suit if deemed expedient; to pay all expenses incurred by assured "in providing such immediate surgical relief as is imperative at the time of any accident covered by this policy." It was further provided in the contract, as follows:

"No action by the assured shall lie against the company until the amount of the damages for which the assured is liable by reason of any casualty covered by this policy, is determined either by a final judgment against the assured or by agreement between the assured and the claimant with the written consent of the Company; nor unless such action is brought within two (2) years after the rendition of such final judgment."

"The bankruptcy or insolvency of the Assured shall not release the Company from any payment otherwise due hereunder and if, because of such bankruptcy or insolvency, an execution on a judgment against the Assured is returned unsatisfied, the judgment creditor shall have a right of action against the Company to recover the amount of said judgment to the same extent that the Assured would have had to recover against the Company had the Assured paid the judgment."

Appellee rests her claim against the insurance company entirely upon the contract between that company and Volpe Bros., and in determining that claim the courts must, of course, look solely to the provisions of that contract, which provide, in effect, that the insurance company shall "insure" Volpe Bros. "against loss from the liability imposed by law upon" Volpe Bros. "for damages on account of" injuries to the person and property of others. It is then stipulated that no right of action upon such obligation "shall lie against the Company until the amount of damages" thereunder "is determined by a final judgment against" Volpe Bros. "or by agreement between" Volpe Bros. "and the claimant with the written consent of the" insurance company. It is admitted—is obvious from the record—that none of those contingencies had arisen which would authorize the assured, even, to bring an action upon the contract against the insurer, for no liability has been imposed by law upon Volpe Bros., no amount of damages for which Volpe Bros. are liable has been "determined by a final judgment against" them, or by their approved agreement with appellee. Moreover, by express provision of the contract, no creditor of Volpe Bros. shall have a right of action against the insurer except in case of the bankruptcy or insolvency of Volpe Bros., and not in that contingency until he has obtained a judgment against Volpe Bros. and execution thereon has been returned unsatisfied. Of course, such contingency has not here arisen.

The insurance contract was paid for by and issued to Volpe Bros. for their benefit and protection, and by its own terms can never operate to the benefit of third parties except upon the conditions and in the contingencies therein expressly prescribed, and which, under express provisions of the contract, cannot arise until after the claims of third parties are reduced to final judgment and the assured refuses, or is unable because of bankruptcy or insolvency, to discharge that judgment. To give to the contract the added effect sought by appellee requires not only the making of a new contract for the parties thereto, but the extension of the benefits of that contract to complete strangers, in obvious contravention of the intention of the parties. Huddy on Automobiles (5th Ed.) § 837; Merchants' Mut. Automobile Liability Ins. Co. v. Smart, 267 U. S. 126, 45 S. Ct. 320, 69 L. Ed. 538; Metropolitan Casualty Ins. Co. of New York v. Colthurst (C. C. A.) 36 F.(2d) 559; Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135; Jacobs v. Maryland Casualty Co., 198 App. Div. 470, 191 N. Y. S. 692; Schoenfeld v. New Jersey Fidelity & Plate Glass Ins. Co., 203 App. Div. 796, 197 N. Y. S. 606; Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Owens v. Jackson-Hinton Gin Co. (Tex. Civ. App.) 217 S. W. 762; Hanson v. Haymann (Tex. Civ. App.) 280 S. W. 869; Fidelity Union Casualty Co. v. Hanson (Tex. Com. App.) 44 S.W.(2d) 985; New York Ind. Co. v. Ewen, 221 Ky. 114, 298 S. W. 182; Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135; O'Neal v. Pocahontas Transp. Co., 99 W. Va. 456, 129 S. E. 478; Shepherd v. Pocahontas Transp. Co., 100 W. Va. 703, 131 S. E. 548; Conwell v. Hays, 103 W. Va. 69, 136 S. E. 604; Canen v. Kraft, 41 Ohio App. 120, 180 N. E. 277; Dallas Coffee & Tea Co. v. Williams (Tex. Civ. App.) 45 S.W.(2d) 724; American Fidelity & Casualty Co. v. Jones Transfer Co. (Tex. Civ. App.) 46 S.W.(2d) 1054; ...