Fort Worth & Denver Ry. Co. v. Ferguson, 15449

• Decision Date: 16 October 1953
• Docket Number: No. 15449,15449
• Citation: 261 S.W.2d 874
• Parties: FORT WORTH & DENVER RY. CO. v. FERGUSON.
• Court: Texas Court of Appeals

Page 874

261 S.W.2d 874

FORT WORTH & DENVER RY. CO. v. FERGUSON.

No. 15449.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 16, 1953.

Rehearing Denied Nov. 13, 1953.

Barwise, MaGoffin & Carrigan, McGee & Armstrong, and R. Wright Armstrong, Jr., Fort Worth, for appellant.

Wade, Davis & Callaway and Clyde M. Marshall, Jr., Fort Worth, for appellee.

MASSEY, Chief Justice.

From a judgment for plaintiff automobile owner and the collision insurance carrier on plaintiff's automobile in the total amount of $220.05 (the intervenor Insurance Company having been subrogated and/or assigned plaintiff's cause of action against defendant to the extent of $170.05), growing out of defendant Railway Company's negligence resulting in a collision between plaintiff's automobile and defendant's train, the defendant appeals.

Judgment affirmed.

L. L. Ferguson, as plaintiff, and as owner of the cause of action, filed a suit for damages in the amount of $220.05, occasioned by virtue of injury to his automobile in a collision, against the Fort Worth & Denver Railway Company, as defendant, growing out of an automobile-train collision in Montague County, Texas. Plaintiff alleged that he was driving his automobile upon the State Highway between Bowie and Jacksboro, Texas, and within the city limits of Bowie, Montague County, Texas, and when in the process of driving his automobile across defendant's tracks where said tracks cross the highway, the defendant, through its agents and servants, backed a locomotive and train of unlighted cars across said highway and into and against the right side of plaintiff's automobile, damaging the automobile as a direct and proximate result of defendant's negligence.

It appears that the time of said occurrence was approximately 10:45 P. M., on date of November 26, 1951, during the course of an extremely dark night and when it was raining.

Plaintiff alleged various omissions of defendant to have constituted negligence, premised on defendant's failures with reference to lookout, warning whistle, bell ringing, insufficient lighting, absence of flagman or signalman, failure to stop, failure to provide adequate lighting at the crossing and to provide electric signal lights or other special warning devices at the crossing, etc.

Plaintiff further alleged that said crossing, in view of the conditions obtaining at the time and place of the collision, all of which were all known to defendant at such time, was an extra-hazardous crossing, where in view of said conditions at said time defendant should have had such crossing lighted or should have provided a flagman or flashing lights or other special warning devices for the protection of motorists approaching said crossing.

Plaintiff alleged $220.05 automobile damages, representing the reasonable cost for parts, labor and materials necessary to repair the automobile and place it in the condition in which it was immediately prior to the collision, and alleged further that $220.05 represented the difference in the reasonable cash market value of said automobile between the time immediately subsequent to said collision and immiediately prior thereto at the place of the occurrence.

Defendant answered by general denial, and specially pleaded contributory negligence in various particulars on the part of plaintiff. Defendant did not by any pleading, sworn or unsworn, advance a denial that the plaintiff was authorized to sue it in the capacity of owner of the cause of action, which was the capacity in which the action was originally brought. Defendant did not interpled any additional party. It appears that the case was called for trial on February 16, 1953, and both parties announced ready. With leave of the court and outside the presence of the jury, the defendant's attorney put the plaintiff L. L. Ferguson on the stand and asked him if his damages-out of pocket damages-on the collision in question were not in fact $50. In response to the question, plaintiff answered that his said damages were $50. Defendant's attorney then asked if it was not a fact that he did not have any power or authority or power of attorney from any other party to bring a law suit for damages in excess of $50, to which the plaintiff answered, in effect, that he did not have any authority or power from any other party to bring a lawsuit for damages in excess of his own damages of $50. Then defendant's attorney asked the plaintiff whether or not he had entered into any agreement with any other party which would allow him to bring a lawsuit for such other's benefit or for any damages that such other party might have suffered, other than the $50 damages he himself had suffered, to which the plaintiff replied that he had not entered into such an agreement.

After the occurred, the attorney of record for the plaintiff examined him and showed, over the strenuous objection of the defendant, that as a matter of fact the circumstances attendant to the bringing of the lawsuit were generally as follows: At the time the collision in question occurred the Service Fire Insurance Company of New York and in effect upon the automobile of the plaintiff a policy of $50 deductible collision insurance. Under and by virtue of said policy of insurance an on account of the injury to the automobile resultant from the collision, the Company paid (under the measure of damages provided by the policy) to plaintiff, as the insured under said policy, the sum of $170.05. This payment made by the Insurance Company actually constituted all but the first $50 necessarily expended in order to repair the damage done to the plaintiff's automobile as result of the collision. The plaintiff, by an instrument executed at the time of said payment (whether the payment was made to plaintiff in person, or to others for or in his behalf being immaterial in our opinion), had subrogated and assigned to the Insurance Company a portion of his interest in and to his claim and cause of action for damages against the defendant to the extent of said payment, and, as is customary in such cases, the attorneys selected for the purpose were authorized to sue the defendant in the name of the insured, the plaintiff in this case, but for the constructive use and benefit of both the plaintiff and the Insurance Company.

The defendant then filed a plea to the jurisdiction, not alleging any fraud upon the jurisdiction but alleging that plaintiff had established by his testimony the fact that the amount of damage suffered by him was $50, and hence, $50 necessarily was the amount in controversy in the suit between the named plaintiff and defendant, and the jurisdiction of a cause involving $50 being exclusively in the Justice Court, the County Court did not have jurisdiction.

Alternatively, defendant plead that inasmuch as plaintiff had sought to recover damages based upon a claimed loss of $220.05 while his admitted damages was only $50, it was suggested that C. I. T. Corporation, an automobile finance company (which concern apparently was financing plaintiff's purchase of his automobile at the time of the collision in question), was jointly interested in the subject matter of the suit and was interested in the collection of such damages as might have resulted over and above the amount of $50 in damages plaintiff admitted as the damages he had sustained. Defendant suggested in its pleading that the court issue citation compelling the C. I. T. Corporation to file its pleading stating its interest and claim as against the defendant as to the damages sought to be recovered in the name of the plaintiff, or to join in the suit with the plaintiff, or that the court order the plaintiff to show by what power and authority he had brought suit against the defendant to recover damages for the benefit of the C. I. T. Corporation.

At this stage of the proceedings, the attorneys of record for the plaintiff filed a pleading denominated 'Petition of Intervention in behalf of the Service Fire Insurance Company of New York'. This pleading was filed by said attorneys in behalf of such intervenor, by which the intervenor alleged that at the time and place of the collision in question it had a certain designated policy of insurance in effect upon the automobile of the plaintiff, whereby it insured plaintiff against all loss by collision damage to the automobile involved in said collision in excess of the policy deductible amount of $50; that by reason of said collision and said policy the intervenor became obligated to and did pay to plaintiff the sum of $170.05, as partial reimbursement for the damages resulting to plaintiff's car from said collision, whereby it in turn, through operation of subrogation, became the owner of plaintiff's cause of action to the extent of said amount, and further that plaintiff had executed an agreement assigning to the intervenor his rights against any person or firm responsible for the damage done to his automobile to the extent of said sum of $170.05, whereby it was the assignee owner of the cause of action to such extent. Intervenor prayed the adjudication of the court that it was entitled to recover the sum of $170.05, together with interest and costs, out of the amount to be recovered by plaintiff of the defendant if plaintiff should prevail by his suit against the defendant.

The intervenor and the plaintiff filed in the trial court an instrument denominated 'Motion for Instruction not to Mention Insurance', in which instrument they stipulated with one another that the intervenor was subrogated to the sum of $170.05 in the total amount of plaintiff's cause of action against the defendant, and that in the event it be found upon the trial that plaintiff was entitled to collect damages as sued for against the defendant, that the first $170.05 of the total of such damages awarded should be adjudged to the intervenor, with such amounts awarded in excess thereof adjudged to plaintiff. Plaintiff and intervenor then jointly moved the...