Dunn v. Traders & General Ins. Co.

• Decision Date: 10 February 1956
• Docket Number: No. 15048,15048
• Citation: 287 S.W.2d 682
• Court: Texas Court of Appeals
• Parties: Claude DUNN et ux., Appellants, v. TRADERS & GENERAL INS. CO., Appellee.

Page 682

287 S.W.2d 682

Claude DUNN et ux., Appellants, v. TRADERS & GENERAL INS. CO., Appellee.

No. 15048.

Court of Civil Appeals of Texas, Dallas.

Feb. 10, 1956.

Rehearing Denied March 9, 1956.

O. M. Stubblefield, Bonney, Wade & Stubblefield, Dallas, for appellants.

Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee.

YOUNG, Justice.

Appellants as plaintiffs in trial court sought recovery against appellee on two Georgia judgments representing damages for injuries sustained by Mrs. Dunn, growing out of an accident when struck by the automobile of Arthur Hurley and driven by Jackie Evenson. Invoking the provisions of Rule 166-A, T.C.P., both sides moved for summary judgment supported by affidavits; that of the insurance company being sustained with judgment that plaintiffs take nothing by their suit, which ruling is the occasion of this appeal.

Background of the instant proceedings must first be outlined; the record (pleadings and briefs of the respective parties) reflecting facts and occurrences, viz.: On May 6, 1952 defendant Company issued to Arthur Hurley its one-year automobile policy No. A 685429, a copy of which was attached to plaintiffs' petition, certified as of October 8, 1953 by defendant's Vice President to be a true and exact copy; its contents in part, descriptive and otherwise, being here quoted: Labeled 'Automobile Comprehensive Personal Liability'; assured 'Arthur Hurley, Address 185th Signal Bn., Camp Polk, La. * * * Occupation * * * Sgt. 1st Class, U. S. Army * * * Bodily Injury Liability--Automobile $5,000 each person, $10,000 each accident * * * Total Premium $10.00'; the policy further describing coverage as '1949 Chevrolet Conv.', then reciting 'Form Attached-Military Posts, Camps or Cantonments Limited Coverage'; purpose of automobile use 'pleasure and business'; and countersigned by Morris Insurance Agency, Leesville, La. Rider Form 102A, headed 'Military Posts, Camps, Cantonments or Reservations-Limited Coverage', provides: 'This endorsement forms a part of Policy No. A 685429 issued to Arthur Hurley by the Traders & General Insurance Company at its Agency located (city and state) Leesville, Louisiana and is effective from May 6, 1952 (12:01 A.M. Standard Time). It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage Liability and for Medical Payments applies subject to following provisions: 1. The insurance applies only to accidents which occur while the automobile is within boundaries of any military post, camp, cantonment or reservation. 2. The insurance shall not be construed to comply with the motor vehicle financil responsibility law of any state or province. By Morris Insurance Agency (Duly Authorized Representative). FORM 102A.-Military Posts, Camps, Cantonments or Reservations-Limited Coverage. Standard Automobile Endorsement Revised May 1, 1953.' (Here it is to be noted that above Rider Form 102A bears the imprint 'Revised May 1, 1953'; and that without such Rider and under sec. IX, policy insuring agreements, its coverage was for accidents occurring 'within the United States * * *.')

On December 24, 1952, Appellant Mary Dunn was struck and injured by the automobile of insured Hurley, occupied by him and driven by Evenson, while she was walking on U. S. Highway 78 inside the City limits of Harlem, Georgia. The Dunns thereafter brought damage suits, for injuries arising from said accident, in the Superior Court of Columbia County, Georgia; obtaining judgments, viz.: Against Hurley for $3,800 of date September 28, 1952, against Evenson for $10,000 of date March 22, 1954. The instant suit was based on these judgments in the amount of $5,000 and reasonable attorney fees; alleging among other things that said Rider 102A was not on Policy A 685429 at time of issuance to Hurley or at time of the injuries complained of; going on to assert invalidity of Rider on various grounds in event of its original attachment to the policy. Plaintiffs further pled estoppel of defendant Company to deny liability in that, relying on the copy of policy so furnished, considerable expense had been incurred in connection with the Evenson suit and prosecution of same to judgment.

In support of the motion for summary judgment filed by plaintiffs were affidavits of their attorney Randall Evans, Jr., and the Dunns; reciting allegations of petition concerning time expended and services performed (legal and otherwise) in reliance on the copy of policy furnished by defendant Company; the attorney valuing his time and efforts at $2,500; also loss of earnings to clients at $100 and that no money had been collected on said judgments for the injuries suffered by Mary Dunn.

At the hearing of November 18, 1954 appellee's motion for summary judgment was supported by affidavit of its attorney, W. M. Taylor, Jr., first pointing to insufficiency of plaintiffs' affidavits to raise genuine issues of fact; that the insurance purchased by Hurley was for restricted coverage, applying only to accidents occurring while his automobile was within the confines of a military post, camp or cantonment, paying therefor only the sum of $10, Rider 102A so providing and at all times a part of the policy; that no estoppel could arise and nothing in the policy or endorsements attached could possibly have misled plaintiffs to their injury; that on June 2, 1953 Morris Insurance Agency (defendant's representative) at Leesville, Louisiana, wrote to Randall Evans, plaintiffs' attorney, advising him that the insurance purchased by Hurley applied only to accidents occurring within boundaries of 'any military post, camp, or cantonment,' and hence no estoppel would apply. This affiant further stated: 'that the premium for unrestricted coverage under the laws of the State of Louisiana would have been $46.00, and for defendant to have provided unrestricted coverage for $10.00 would have been a violation of Section 652 prohibiting unfair discrimination in favor of particular individuals or persons, and plaintiffs here seek to write a new contract between this defendant and Arthur Hurley creating an insurance coverage not purchased nor paid for by said Hurley.'

These motions for summary judgment, submitted to the court along with above affidavits on November 18, 1954, were held under advisement until May 26, 1955, then rendering the judgment adverse to plaintiffs. Within said period and on February 10, 1955 appellee filed a further affidavit in person of O. E. Morris, Proprietor of Morris Insurance Agency, Leesville, La., whose sworn statement follows: '* * * that on or about May 6, 1952, one Arthur Hurley, who was a Sergeant in the United States Army stationed at Camp Polk, Louisiana, applied to affiant for an insurance policy on his automobile so that he could operate said automobile on the military base of Camp Polk; that Army Regulations required that automobiles to be operated on the military base should have public liability and property damage insurance coverage; that said Arthur Hurley desired and requested the limited coverage which would authorize him to take his car on the military base and could be sold to him for a premium of $10.00, whereas the insurance coverage which would protect him off the military base would cost $46.00 as of May 6, 1952, being the premium fixed by the Insurance Rating Commission of the State of Louisiana on that type of insurance policy; therefore, on or about May 6, 1952, affiant caused to be issued to said Arthur Hurley Traders and General Insurance Company Policy No. A 685429, with Endorsement 102A being attached and made a part of said policy; that said Endorsement 102A provides: 'It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability and for Property Damage Liability applies only to accidents which occur while the automobile is within boundaries of any military post, camp or cantonment'; that said Endorsement 102A is filed with and approved by the Office of the Commissioner of Insurance of the State of Louisiana; that said Arthur Hurley paid only the premium of $10.00 for such policy.' Affiant Morris further stated that thereafter the attorney for plaintiffs had written him for information concerning the policy in suit, he replying on June 2, 1953, as follows:

'Mr. Randall Evans, Jr. Thomson, Ga. Dear Sir: With reference to your letter of May 28th, we have located the following described policy, which was issued for 1 year on May 6, 1952 to Arthur Hurley, covering the 1949 Chev. Conv. described in your letter: No. A 685429-Traders and General...