G. A. Stowers Furniture Co. v. American Indemnity Co.

• Decision Date: 04 May 1927
• Docket Number: (No. 8974.)
• Citation: 295 S.W. 257
• Parties: G. A. STOWERS FURNITURE CO. v. AMERICAN INDEMNITY CO.
• Court: Texas Court of Appeals

295 S.W. 257

G. A. STOWERS FURNITURE CO. v. AMERICAN INDEMNITY CO.

(No. 8974.)

Court of Civil Appeals of Texas. Galveston.

May 4, 1927.

Rehearing Denied May 19, 1927.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by the G. A. Stowers Furniture Company against the American Indemnity Company. From the portion of the judgment denying recovery of a part of the sum demanded plaintiff appeals, and defendant complains of the portion allowing interest. Affirmed.

Atkinson & Atkinson and Fulbright, Crooker & Freeman, all of Houston, for appellant.

Fouts, Amerman, Patterson & Moore, King & Wood, Joe Moore, Andy C. Wood, and R. C. Patterson, all of Houston, for appellee.

LANE, J.

Stowers Furniture Company was, on the 23d day of January, 1920, engaged in the business of selling furniture in the city of Houston, Tex., as it had been for many years prior thereto; in connection with its business it owned and operated a certain automobile truck. On said 23d day of January, 1920, one of its servants was in charge of its truck on Austin street in the city of Houston at or about the hour of 7 p. m., and while being driven on said street said truck came in contact with a wagon which some one had left standing on the street near the curbing and was by such contact disabled and so injured in such manner that the servant could not longer operate it and he left it standing on the street after dark unlighted and without an attendant; shortly after it was so left a Ford coupé, occupied by Miss Mamie Bichon and driven by one Jamail, came in collision with the same. By reason of said collision the automobile in which Miss Bichon was riding was turned over and she was seriously injured. Miss Bichon brought suit for damages against the Stowers Furniture Company for $20,000.

At the time of such injury and the filing of said suit the Furniture Company held a policy issued to it by the Indemnity Company for the sum of $5,000, indemnifying said Furniture Company against loss imposed by law upon it for injuries accidentally suffered by any person or persons by reason of the automobile owned and operated by the Furniture Company. The policy in question contained substantially the following stipulations and agreements, to wit: That in the event a claim is made or suit brought for an injury for which the Indemnity Company would be liable in whole or in part, under the terms of the policy, the assured should not voluntarily assume any liability, settle any claim, or incur any expense, except at its own cost, or interfere in any negotiation for settlement or legal proceedings without the written consent of the Indemnity Company; that the Indemnity Company would defend in the name and on behalf of the Furniture Company any suit, even if groundless, brought against it to recover damages on account of such happenings as are provided for by the terms of the policy; liability of the company should be limited to the sum of $5,000 for the injury of any one person and to $10,000 regardless of the number of persons injured, but irrespective of such limitation the Indemnity Company would pay all costs taxed against assured in any legal proceedings defended by the Indemnity Company, all interest accruing after entry of judgment upon such part thereof as shall not be in excess of its liability and expenses incurred by the assured for such immediate medical or surgical relief as is imperative at the time of the accident, together with all the expenses incurred by it in investigating such accident, the adjustment of any claim, or the defense of any suit resulting therefrom.

Under and by virtue of the terms of the policy the Indemnity Company took charge of the defense of the above-mentioned suit and employed counsel to defend same.

Upon trial, judgment was rendered in favor of Miss Bichon against the Furniture Company for $12,207 and costs of suit. From such judgment an appeal was taken to the Court of Civil Appeals, where the same was affirmed. Stowers Furniture Co. v. Bichon, 254 S. W. 606. A writ of error was applied for, and refused by the Supreme Court.

After the judgment became final the Furniture Company paid the same in full, which, including interest, amounted to $14,103.15. Thereafter the Indemnity Company tendered to the Furniture Company the sum of $5,000 and interest thereon to date upon such sum upon condition that the Furniture Company execute to it a release from further liability under its policy. Such tender was refused by the Furniture Company.

After the payment by the Furniture Company of the $14,103.15 adjudged against it in favor of Miss Bichon, the Furniture Company demanded of the Indemnity Company the payment of the sum so adjudged against it, and upon the refusal of the Indemnity Company to pay it more than $5,000 the Furniture Company brought this suit against the Indemnity Company to recover the sum of $14,103.15 and interest thereon from the date on which it paid such sum to Miss Bichon.

The Furniture Company in its second amended petition, upon which it went to trial, substantially alleged the facts above, set out the allegations made by Miss Bichon in her petition in her suit against the Stowers Furniture Company, to wit, that on the night of the 23d day of January, 1920, the Furniture Company left a large truck in Austin street, Houston, Tex., in such manner as to obstruct a portion of said street; that said night was dark and rain was falling; that there were no lights on said truck and therefore it could not be seen by those traveling along said street; that the ordinances of the city of Houston required such truck to have two lights on the front end thereof and a red light on the rear end thereof after dark; that by reason of the negligent acts of the Furniture Company in leaving its truck in said street at night unlighted and unattended, an automobile in which she was riding came in collision therewith, causing her back to be badly wrenched, her kidneys to be seriously injured, a cut on the bridge of her nose, which left a permanent scar, several cuts and bruises on her chin, temple and ear, a wound on her throat which injured the thyroid gland, caused by some sharp instrument penetrating her throat and cutting some arteries causing her a great loss of blood and inflicting upon her a permanent scar, her heart to be seriously strained and ruptured, which was liable to prove fatal at any time and which was incurable, and causing her to suffer intense pain and suffering.

The Furniture Company then alleged the recovery by Miss Bichon, and for grounds for a recovery from the Indemnity Company it alleged that the only defense it had to the suit of Miss Bichon, which was under the provisions of the policy issued by the Indemnity Company to it in the absolute control of said Indemnity Company, was that the servant of the Furniture Company, in charge of said truck at the time of the collision with the aforesaid wagon, on the happening of said collision, had gone two or three blocks to a drug store to telephone the plaintiff's store and inform the plaintiff of the accident; that the collision of the automobile, in which Miss Bichon was a passenger, with plaintiff's truck, occurred while plaintiff's servant was away attempting to telephone plaintiff, all of which occurred some 10 or 15 minutes after plaintiff's truck had collided with the aforementioned wagon; that plaintiff, or the defendant herein who was conducting plaintiff's defense in said cause, had to rely for this defense upon the naked statement of plaintiff's servant, who was a negro boy and interested in clearing himself or showing himself guilty of no wrong, whereas the said Mamie Bichon had two reputable white witnesses who were in nowise interested in the suit who testified in her behalf that they saw the truck standing where it had collided with the wagon at about 7 o'clock that night on the 23d day of January, 1920, and the undisputed evidence showed that the accident did not occur until more than an hour later, all of which facts were well known to defendant long prior to said trial, or could have been known by it by the exercise of ordinary care and diligence.

Further pleading, the plaintiff alleged as follows:

"The plaintiff further shows to the court that it became the duty of the defendant and the obligation of the defendant on taking charge of plaintiff's defense in the aforesaid suit to conduct same in good faith and for this plaintiff's interest as well as for the defendant's own interest and without negligence on the part of said defendant, and that it further became the duty and obligation of said defendant to conduct said suit and to make such settlement with the said Miss Bichon or her attorneys as a reasonably prudent person would have made under the same or similar circumstances for the protection of this plaintiff's interest; that after the defendant took charge of this plaintiff's defense, as aforesaid, and a short time prior to the trial of said suit, Miss Mamie Bichon and her attorneys entered into a negotiation with defense counsel who was representing this plaintiff in said suit for a settlement of her cause of action and offered to accept in full settlement of her said claim for damages on account of injuries she had sustained in said accident in the sum of $4,000, which was $1,000 less than the maximum indemnity of $5,000 guaranteed to this plaintiff by defendant by virtue of said policy; that defendant informed this plaintiff that said proposition to accept $4,000 in full settlement of said claim on the part of said Miss Bichon was a good settlement and should be accepted; that it (defendant) would pay the sum of $2,500 on said...