Fidelity & Casualty Co. v. Maryland Casualty Co.

• Court: Texas Court of Appeals
• Writing for the Court: Murray
• Citation: Fidelity & Casualty Co. v. Maryland Casualty Co., 151 S.W.2d 230 (Tex. App. 1941)
• Decision Date: 14 May 1941
• Docket Number: No. 10947.,10947.
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK et al. v. MARYLAND CASUALTY CO. et al.

151 S.W.2d 230

FIDELITY & CASUALTY CO. OF NEW YORK et al. v. MARYLAND CASUALTY CO. et al.

No. 10947.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1941.

Appeal from District Court, Thirty-Seventh District, Bexar County; Harry L. Howard, Judge.

Suit by the Fidelity & Casualty Company of New York and another against the Maryland Casualty Company and another to recover certain sums paid out by plaintiffs under the provisions of a general performance bond in which Joseph A. Holpuch Company was principal. From an adverse judgment, the plaintiff, Fidelity & Casualty Company of New York, appeals.

Reversed and rendered on condition.

Dodson, Ezell & Duke, of San Antonio, for appellant.

R. H. Mercer and House & Irvin, all of San Antonio, for appellees.

MURRAY, Justice.

This suit was instituted in a District Court of Bexar County, Texas, by Fidelity & Casualty Company of New York, a corporation, and Aetna Casualty & Surety Company, another corporation, against W. E. Sultenfuss, Inc., and Maryland Casualty Company, also a corporation, seeking to recover certain sums of money paid out by plaintiffs under the provisions of a certain general performance bond in which Joseph A. Holpuch Company was principal. The bond was given by Holpuch Company to the United States of America to guarantee the general performance of a contract between it and Holpuch Company, for the construction of fifty-nine two-story type Company Officers' Quarters at Fort Sam Houston, Texas.

There was a suit in the Federal District Court, San Antonio Division, in which Holpuch Company secured a judgment over and against W. E. Sultenfuss, Inc., a subcontractor, in the sum of $3,739.20. Maryland Casualty Company was surety upon the performance contract of Sultenfuss as a sub-contractor. Plaintiffs having become subrogated to the rights of Holpuch Company sought herein judgment against Sultenfuss, Inc., and Maryland Casualty Company to reimburse themselves.

At the close of the evidence plaintiff moved the court for a directed verdict in its favor, which was by the court overruled. The case was then submitted to a jury upon twenty (20) special issues and, upon the jury's answers, which were generally favorable to the defendants, judgment was entered that plaintiffs take nothing, from which judgment Fidelity & Casualty Company has prosecuted this appeal.

This case is similar in many ways to the case of Maryland Casualty Company v. Fidelity & Casualty Company, Tex.Civ. App., 147 S.W.2d 1097. That case involved a contract by the same parties for the construction of sixteen (16) Company Officers' Quarters at Fort Sam Houston, while the present cause involves a contract to construct fifty-nine (59) similar Company Officers' Quarters. However, the issues presented by the two appeals are quite different, due to the fact that the first cause was tried before the court without a jury and all disputed facts determined favorably to the plaintiffs in that cause, while in the case at bar the trial was to a jury and the jury's answers were generally unfavorable to plaintiffs below.

Appellants first contend that the trial court erred in not granting their motion for a directed verdict. Appellees object very strenuously to our considering appellants' first proposition, based upon their first assignment of error. Such first assignment of error reads as follows: "The Court erred in overruling and in not granting the motion for instructed verdict timely filed by Appellants at the conclusion of the introduction of evidence."

The motion for an instructed verdict was in general form and did not undertake to specify any reason why an instructed verdict should be granted. In the motion for a new trial the matter was not elaborated upon at all. In fact, the complaint in the motion for a new trial is in the exact language of the assignment of error set forth in appellants' brief. Appellants have not attacked the answers of the jury to the special issues submitted to them on the ground that there was "no evidence" to support such answers, or that there was "insufficient evidence" to do so, nor that such answers were so against the great weight and preponderance of the evidence as to indicate malice or prejudice on the part of the jury. In other words, the answers of the jury to the issues are entirely ignored by appellants.

Article 2202, Subdivision 6, Vernon's Ann.Civ.Statutes reads as follows: "6. A special verdict found under the provisions of this article shall, as between the parties, be conclusive as to the facts found."

Article 2209, Vernon's Ann.Civ.Statutes, provides: "Where a special verdict is rendered, or the conclusions of fact found by the judge are separately stated, the court shall render judgment thereon unless set aside or a new trial is granted."

Article 2211, Vernon's Ann.Civ.Statutes, reads in part as follows: "The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. * * *"

Appellants' first proposition is subdivided in three sections, lettered (a), (b) and (c). Each one of these subdivisions is, in truth and in fact a separate proposition and we will treat them as such.

This first proposition reads as follows:

"The Trial Court erred in overruling and in not sustaining the motion for peremptory instruction timely filed by Appellant at the conclusion of the evidence, for the following reasons, to-wit:

"(a) The undisputed evidence shows that Appellants sought judgment on a bond against Appellees, Sultenfuss, Inc., as principal, and Maryland Casualty Company as surety, for reimbursement of money paid by Appellants as sureties for Holpuch Company on a construction bond given by it under the Heard Act, 40 U.S.C.A. § 270, which money was paid in obedience to a judgment, rendered in a Heard Act suit against Holpuch as principal and Appellants as sureties on the Holpuch bond in favor of unpaid furnishers of labor and material to Sultenfuss, Inc., a subcontractor under Holpuch. Appellee, Maryland Casualty Company, was bound by said judgment against its principal Sultenfuss and in favor of Appellants and Holpuch (which judgment was rendered in the Federal Court in the exercise of its jurisdiction under the Heard Act) since the undisputed evidence shows that said Appellee had notice of said suit and employed attorneys of its own selection to therein represent Sultenfuss, and the interest of said Appellee (without making it a party of record), pursuant to which employment, said attorneys entered into stipulations which supported said judgment."

The jury found in answer to special issue No. 15 that Maryland Casualty Company did not pay Mr. A. V. Knight's fee as attorney for W. E. Sultenfuss, Inc., to represent the interest of Maryland Casualty Company.

This brings us face to face with the question as to whether or not appellants, who have in no way attacked the finding of a jury, will be heard to contend that they should have been given an instructed verdict, because the evidence conclusively establishes just the opposite of what the jury, in an unchallenged answer, has found the facts to be.

We realize that it is the policy of the Supreme Court to be as liberal as possible in considering the sufficiency of assignments of error and ...