Grasso v. Cannon Ball Motor Freight Lines, 1832-6671.

• Decision Date: 03 April 1935
• Docket Number: No. 1832-6671.,1832-6671.
• Citation: 81 S.W.2d 482
• Parties: GRASSO v. CANNON BALL MOTOR FREIGHT LINES et al.
• Court: Texas Supreme Court

Page 482

81 S.W.2d 482

GRASSO v. CANNON BALL MOTOR FREIGHT LINES et al.

No. 1832-6671.

Commission of Appeals of Texas, Section A.

April 3, 1935.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Volker Grasso against the Cannon Ball Motor Freight Lines and another. To review a judgment of the Court of Civil

Appeals [59 S.W.(2d) 337] which reversed and remanded a judgment in favor of plaintiff, he brings error.

Affirmed.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for plaintiff in error.

Eskridge & Groce and George S. Rice, Jr., all of San Antonio, for defendants in error.

CRITZ, Commissioner.

This suit was filed in the Thirty-Seventh district court of Bexar county, Tex., by Volker Grasso, plaintiff in error here, against Cannon Ball Motor Freight Lines, and Universal Casualty Company to recover damages for personal injuries alleged to have been sustained by Grasso as the result of the negligence of Cannon Ball Motor Freight lines. It appears that Grasso lost his arm as a result of the accident. At the time of the accident, the freight line was operating as a common carrier of freight for hire under a certificate of convenience duly issued by the Railroad Commission of Texas. The freight line answered to the merits of the case. The casualty company filed in due order its plea in abatement complaining of the attempt to join it in the same suit against the freight line. The plea in abatement was overruled by the trial court and the case submitted to a jury upon special issues. Based on the answers of the jury to the issues submitted, the trial court entered a judgment for Grasso against the freight line and the casualty company. On appeal by the freight line and the casualty company, this judgment was reversed and the cause remanded. (Tex. Civ. App.) 59 S.W.(2d) 337. Grasso brings error.

The most important law question involved in this appeal is whether in cases of this kind the surety on the insurance bond required by the statute here involved can be joined as a defendant in the suit against the principal. On this question our Courts of Civil Appeals have conflicted. It is not necessary to name the Courts of Civil Appeals that have taken one side or those that have taken the other; it is sufficient to say that such courts have conflicted. It is our purpose in this opinion to definitely and finally settle the law question involved, as well as the conflict.

It is our opinion that the trial court erred in not sustaining the plea in abatement raising the issue of misjoinder filed by the casualty company. It is also our opinion that the petition of the plaintiff in the district court stated no cause of action against the casualty company, and, as to such company, such petition was subject to a general demurrer. This conclusion is based on the terms of the statute governing the matter under consideration. In this connection it will be noted that the insurance policy here involved was issued to the freight line and placed on file with the Railroad Commission in compliance with the laws of this state as set out and contained in section 13 of article 911b, Vernon's Ann. Civ. St. (vol. 2). The statute in question reads as follows:

"See. 13. Before any permit or certificate of public convenience and necessity may be issued to any motor carrier and before any motor carrier may lawfully operate under such permit or certificate as the case may be, such motor carrier shall file with the Commission bonds and/or insurance policies issued by some insurance company including mutuals and reciprocals or bonding company authorized by law to transact business in Texas in an amount to be fixed by the Commission under such rules and regulations as it may prescribe, which bonds and insurance policies shall provide that the obligor therein will pay to the extent of the face amount of such insurance policies and bonds all judgments which may be recovered against the motor carrier so filing said insurance policies and bonds, based on claims for loss or damages from personal injury or loss of, or injury to property occurring during the term of said bonds and policies and arising out of the actual operation of such motor carrier, and such bonds and policies shall also provide for successive recoveries to the complete exhaustion of the face amount thereof and that such judgments will be paid by the obligor in said bonds and insurance policies irrespective of the solvency or insolvency of the motor carrier, provided, however, such bonds and policies shall not cover personal injuries sustained by the servants, agents or employees of such motor carrier. Provided further that in the event the insured shall abandon his permit or certificate and leave the State, a claimant, asserting a claim within the provisions of said bonds or policies, may file suit against the sureties executing such bond or the company issuing such policies in a court of competent jurisdiction without the necessity of making the insured a party to said suit. Provided, however, that the Commission shall not require insurance covering loss of or damage to cargo in amount excessive for the class of service to be rendered by any motor carrier. Each such motor carrier shall, on or before the date of the expiration of the term of any policy or bond so filed by him, file a renewal thereof, or new bonds or policies containing the same terms and obligations of the preceding bonds and policies, and shall each year thereafter on or before the expiration date of the existing bonds and policies, file such renewal policies and bonds so as to provide continuous and unbroken protection to the public having legal claims against such motor carrier, and in the event such renewal bonds and policies are not so filed, the Commission, after notice to the motor carrier, and hearing, may, within its discretion if it shall find and determine that the ends of justice will be better subserved thereby, cancel such permit or certificate for failure to furnish and provide such bonds or insurance as herein required.

"Each motor carrier shall also protect his employees by taking out workmen's compensation insurance, either as provided by the Workmen's Compensation Laws of the State of Texas, or in a reliable insurance company authorized to write workmen's compensation insurance approved by the Commission. (Acts 1929, 41st Leg., p. 698, ch. 314, as amended Acts 1929, 41st Leg., 2nd C. S., p. 38, ch. 24; Acts 1931, 42nd Leg., p. 480, ch. 277; Acts 1933, 43rd Leg., p. 135, ch. 65.)"

At this point we deem it expedient to also quote section 11 of article 911a of the same statutes above mentioned. That statute reads as follows:

"Sec. 11. The Commission shall, in the granting of any certificate to any motor bus company for regularly transporting persons as passengers for compensation or hire, require the owner or operator to first procure liability and property damage insurance from a company licensed to make and issue such insurance policy in the State of Texas, covering each and every motor propelled vehicle while actually being operated by such applicant. The amount of such policy or policies of insurance shall be fixed by the Commission by general order or otherwise, and the terms and conditions of said policy or policies covering said motor vehicle are to be such as to indemnify the applicant against loss by reason of any personal injury to any person or loss or damage to the property of any person other than the assured and his employees. Such policy or policies shall furthermore provide that the insurer will pay all judgments which may be recovered against the insured motor bus company based on claims for loss or damage from personal injury or loss of, or injury to, property occurring during the term of the said policy or policies and arising out of the actual operation of such motor bus or busses, and such policy or policies shall also provide for successive recoveries to the complete exhaustion of the face amount thereof, and that such judgment will be paid by the insurer irrespective of the solvency or insolvency of the insured. Such liability and property damage insurance as required by the Commission shall be continuously maintained in force on each and every motor propelled vehicle while being operated in common carrier service. In addition to the insurance hereinabove set forth, the owner or operator shall also protect his employees by taking out workmen's compensation insurance either as provided by the Workmen's Compensation Laws of the State of Texas or in a reliable insurance company approved by the Railroad Commission of the State of Texas. The taking out of such indemnity policy or policies shall be a condition precedent to any operation and such policy or policies as required under this Act (Art. 911a; P. C. art. 1690a), shall be approved and filed with the Commission and failure to file and keep such policy or policies in force and effect as provided herein shall be cause for the revocation of the certificate and shall subject the motor bus company so failing to the penalties prescribed herein. (Acts 1927, 40th Leg., p. 399, ch. 270.)"

It will be noted that section 11 of article 911a was enacted by a Legislature prior to the one which enacted section 13 of article 911b. It will also be noted that section 11, supra, applies to motorbusses, that is, carriers of passengers, while section 13, supra, applies to motor carriers of freight. Why we have seen fit to quote both of these statutes will appear later in this opinion.

A careful reading of section 13, supra, discloses that the obligation of the insurance contract by such statute required is only to pay "judgments," not to pay damages resulting from the negligence of a truck operator. In this connection we call attention to the fact that such statute in unambiguous terms only requires the insurance carrier to "* * * pay * * * all judgments which...