Employers Mutual Casualty Co. of Des Moines v. Mosqueda

• Decision Date: 19 June 1963
• Docket Number: No. 19777.,19777.
• Parties: EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, Appellant, v. Maxine Gonzales MOSQUEDA et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

317 F.2d 609 (1963)

EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, Appellant, v. Maxine Gonzales MOSQUEDA et al., Appellees.

No. 19777.

United States Court of Appeals Fifth Circuit.

May 22, 1963.

Rehearing Denied June 19, 1963.

COPYRIGHT MATERIAL OMITTED

Nelson Scurlock and Rawlings, Sayers, Scurlock & Eidson, Fort Worth, Tex., for appellant.

Charles L. Stephens, Alfred M. Clyde, Forth Worth, Tex., Clyde & Barnes, Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Tex., of counsel, for appellees.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

Two questions are presented to us on this appeal from a judgment which holds that a truck driver was an assured under the omnibus clause of an insurance policy issued to his employer as the named assured. The first concerns the admission of certain evidence and the Judge's refusal to give a qualifying instruction after this evidence was received. The second concerns the sufficiency of the evidence to support the verdict and judgment entered thereon. We conclude there are no errors and accordingly affirm.

Plaintiffs, residents of Texas, brought this action in the Texas courts against Employers Mutual,¹ an Iowa corporation, to compel payment of a judgment previously rendered in the State Courts of Texas in favor of Plaintiffs and against an employee of a company which was the named assured under a policy of insurance issued by Employers Mutual. The cause after removal was tried in the United States District Court. 28 U.S.C.A. § 1441. The jury having found for the Plaintiffs, judgment was entered on their verdict, and Employers Mutual has perfected this appeal.

Initially, this suit arose out of a truckautomobile accident in which the husband and father of Plaintiffs was killed. The truck driver (Buchanan) was employed by Albright Van & Storage Company of Wichita Falls, Texas. As part of its business, it hauled telephone poles in and across the State of Texas. On the day in question, Buchanan hauled a load of poles from Wichita Falls to Springtown, Texas. There are two routes from Wichita Falls to Springtown — one is U. S. Highway 281 passing through Jacksboro, the other is U. S. Highway 287 passing through Henrietta then State Highway 148 from Henrietta to Jacksboro and from there to Springtown. Before departing on his trip, Buchanan obtained permission from the assistant truck dispatcher at Albright to stop on his way through Henrietta to deliver a birthday present to the mother of Buchanan's helper who went along on the trip. After making the stop in Henrietta, Buchanan proceeded to Jacksboro and then to Springtown and unloaded the poles. Buchanan and his helper then decided to go to Azle where they could get a beer. Azle is some 12 miles from Springtown and in the opposite direction from Jacksboro and Wichita Falls but on the highway to Fort Worth, another 13 miles beyond. As they would have to eat before going back to Wichita Falls, they decided, after having a beer in Azle, to go on into Fort Worth to eat the evening meal. This would enable them to return to Wichita Falls by another, and regular, route on U. S. 287, a major, direct highway. Having arrived on the outskirts of Fort Worth, they proceeded toward downtown. It was in this setting, on their way into the city, that the collision occurred which triggered these several suits.

Plaintiffs sued in the State Courts naming as joint defendants, Buchanan and his employer, Albright Van & Storage Company. The jury returned a verdict against both defendants. However, upon motion of Albright, the judge disregarded certain jury findings and entered j.n.o.v. for Albright. The verdict and judgment against Buchanan was appealed to the Texas Court of Civil Appeals where it was affirmed. Mosqueda v. Albright Transfer & Storage Co., Tex.Civ.App., 1958, 320 S.W.2d 867.

Plaintiffs being unable to recover any part of their judgment against Buchanan, they brought this suit against Employers Mutual claiming that Buchanan was covered under the policy it had issued to Albright. All other issues having been resolved in the previous state proceeding, the only issue² in the present suit was whether Buchanan was using the truck with the permission of the insured, Albright, within the meaning of the omnibus clause of the policy. The policy covered any person using the truck "provided the actual use of the truck is by the named insured or his spouse or with the permission of either." In his opening statement to the jury, counsel for Employers Mutual stated, "It is admitted that the defendant issued a policy of insurance on this truck * * * and it insured people who were using the truck with the permission of Albright Van & Storage Company." Thus, the entire cause was tried and submitted to the jury with "permission" being the only issue.

We think it clear that this "permission" did not have to be express permission on the part of the employer. It could be implied permission. United Services Auto Ass'n v. Russom, 5 Cir., 1957, 241 F.2d 296, 300; Maryland Casualty Co. v. Williams, 5 Cir., 1950, 184 F.2d 983; Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 1961, 352 S.W. 2d 155; Wheeler v. Pavlic, Tex.Civ.App., 1956, 290 S.W.2d 754; 7 Appleman, Insurance Law & Practice § 4365 (1962). It was thus entirely proper for the jury to consider the acts and conduct of the parties prior to the accident in determining if Albright had inferentially acquiesced in the conduct of Buchanan in driving from Springtown to Fort Worth. Life is breathed into the trite phrase, "Actions speak louder than words," because here there was a possibility that a prior course of conduct could outweigh even an express statement by Albright that its truck drivers were told to return to home base by the most direct route.³

Employers Mutual asserts that the trial Judge erred in allowing the admission of certain testimony and in failing to make a qualifying charge with respect thereto. Immediately after the accident causing the death of Plaintiffs' husband and father, criminal charges of negligent homicide were instituted against Buchanan. He employed an attorney to make his bond and represent him in that action by the State. The fees of this attorney were subsequently paid by Employers Mutual. This was brought out, over the objection of Employers Mutual, in the trial below. It is now assigned as error together with the failure of the Judge to make the requested charge that such conduct on the part of the insurance company (in paying the fee) did not constitute an admission on the part of Employers Mutual and did not constitute a waiver or estoppel so as to enlarge the coverage of the policy.

We find no error here. Acts or conduct of a party, or his authorized agent, from which an inference may be drawn that the facts are not as he now claims are admissible against that party. Anything that is said or done by a party may generally be used against him as an admission, so long as it is inconsistent with contentions later advanced at the trial.⁴ 2 McCormick & Ray, Texas Law of Evidence § 1148 (1956); 24 Tex. Jur.2d §§ 613, 623. "It need not have been, as is so often said, an admission against interest, nor is there a need to lay a predicate for its use." Cox v. Esso Shipping Co., 5 Cir., 1957, 247 F.2d 629, 632. While it is true that the fact that Employers Mutual paid Buchanan's attorney fee, standing alone, might not support the claim of Plaintiffs, it is equally true that this was evidence which the jury was entitled to consider. As the jury was entitled to consider this evidence, the giving of the requested qualifying instruction would have destroyed its usefulness. It showed that at least at one time, an agent of Employers Mutual having a responsibility for handling claims against the company considered that Buchanan was covered under the terms of the policy. Since this depended on his having driven the truck to Fort Worth with Albright's "permission," it was also evidence that the party — the defendant insurer — considered that this was the fact. As a matter of agency and evidence this was admissible. Compagnie DeNavigation Fraissinet & Cyprien Fabre, S. A. v. Mondial United Corp., 5 Cir., 1963, 316 F.2d 163; McCormick,...