Great American Indemnity Co. v. McMenamin

• Decision Date: 29 November 1939
• Docket Number: No. 10626.,10626.
• Citation: 134 S.W.2d 734
• Parties: GREAT AMERICAN INDEMNITY CO. v. McMENAMIN et al.
• Court: Texas Court of Appeals

134 S.W.2d 734

GREAT AMERICAN INDEMNITY CO. v. McMENAMIN et al.

No. 10626.

Court of Civil Appeals of Texas. San Antonio.

November 29, 1939.

Rehearing Denied December 30, 1939.

Appeal from Seventy-Third District Court, Bexar County; John F. Onion, Judge.

Suit by F. J. McMenamin against the Great American Indemnity Company to recover $3,000 allegedly due on judgment in suit by plaintiff against Paramount Pictures Distributing Company, Inc., on account of a collision with automobile operated by one L. C. Lowe in the course of his employment with Paramount Pictures Distributing Company, Inc., of which the Great American Indemnity Company was the insurance carrier, wherein Josh H. Groce intervened and claimed an 11/12 interest in the judgment by purchase and alleged that he was entitled to recover 11/12 of the amount due on the judgment. From the judgment rendered, the Great American Indemnity Company appeals.

Judgment affirmed.

John P. Giles, Nat L. Hardy, Johnson & Rogers, and T. M. West, all of San Antonio, for appellant.

Eskridge & Groce, of San Antonio, for appellees.

MURRAY, Justice.

F. J. McMenamin instituted this suit in the 73rd District Court of Bexar County against Great American Indemnity Company, seeking to recover the sum of $3,000.00, alleged to be the amount due on the judgment in a certain cause styled F. J. McMenamin v. Paramount Pictures Distributing Company, Inc., and being cause No. B-84724, in the 45th District Court of Bexar County. McMenamin sought to recover from the Great American Indemnity Company as the insurance carrier of a certain automobile operated by one L. C. Lowe in the course of his employment by Paramount Picture Distributing Company, and with which automobile McMenamin had a collision in the State of Tennessee.

Josh H. Groce intervened in the suit, setting up that he had acquired, by purchase, an eleven-twelfths interest in the judgment and was entitled to recover eleven-twelfths of the amount due on the judgment. It is apparent that Josh H. Groce, in purchasing an eleven-twelfths interest in the judgment, did so largely in the interest of the Employers' Liability Assurance Corporation, Ltd., he being an attorney for such corporation in connection with the matters out of which the original controversy arose.

L. C. Lowe was a traveling salesman for the Paramount Pictures Distributing Company, Inc., which shall hereafter be referred to as Paramount Pictures. Lowe traveled in an automobile owned by himself. Lowe carried an insurance policy on his car with the Great American Indemnity Company, which will hereafter be referred to as Great American, and his employer, Paramount Pictures, carried a policy covering all automobiles not owned by Paramount Pictures, but used by its employees in its business. The Great American contends, among other things, that its policy was not to be resorted to, due to the policy of the Employers' Liability Assurance Corporation (hereinafter referred to as Employers' Liability), while the Employers' Liability contends that its policy was not to be resorted to, due to the policy of the Great American.

The trial was before the court, without the intervention of a jury, and the court rendered judgment against the Great American for the sum of $3000.00, together with interest, and apportioned it eleven-twelfths to Josh H. Groce and one-twelfth to F. J. McMenamin, from which judgment the Great American has appealed.

The trial judge made findings of facts and also additional findings of facts, which will be here copied:

"On September 23, 1935, L. C. Lowe was the owner of an Oldsmobile automobile, and on such date a policy of public liability insurance was issued to him covering such vehicle by the Great American Indemnity Company, and thereafter, on March 18, 1936, near the town of Crab Orchard, Tennessee, while L. C. Lowe was operating such automobile while acting within the course of his employment for Paramount Pictures Distributing Company, Inc. was involved in an automobile accident in which Margaret McMenamin, the wife of F. J. McMenamin, was injured, and as a result of such accident the said Margaret McMenamin subsequently suffered a miscarriage.

"At the time of such accident the said L. C. Lowe was operating his automobile on the wrong side of the road and failed to keep a proper lookout and was, therefore, liable to F. J. McMenamin for such damages as were sustained by Margaret McMenamin, and I find that at the time of the accident none of the exceptions provided in the policy applied.

"Immediate notice was given of the accident to the Great American Indemnity Company and the Great American Indemnity Company investigated the case but failed to consummate a settlement, although settlement negotiations were inaugurated.

"Within a week after the accident L. C. Lowe reported such accident to Paramount Pictures Distributing Company, Inc. but Paramount, knowing that the Great American Indemnity Company was investigating and handling the matter, and further being under the impression that the damages were trivial, did not make any reports of such accident to any insurance companies.

"At the time of the accident there was in full force and effect a non-ownership policy covering the liability of Paramount in the Employers Liability Assurance Corporation, but such policy required immediate written notice of the accident, and such notice was not given by Paramount to Employers' Liability Assurance Corporation for the reasons above stated.

"Thereafter, in October 1936, suit was instituted by F. J. McMenamin against Paramount Pictures Distributing Company Inc., in San Antonio, Texas, but since no service could be had on L. C. Lowe in Texas, L. C. Lowe was not made a party defendant.

"The citation in said suit was tendered to the Great American Indemnity Company because the policy of the Great American Indemnity Company provided extended coverage for any organization legally responsible for the operation of such automobile, but the Great American Indemnity Company denied any obligation to Paramount on the sole grounds that Paramount had other valid and collectible insurance and that, therefore, the omnibus coverage did not apply, in accordance with the terms of the policy herein on file.

"That in order to prevent a default the attorneys for Employers' Liability Assurance Corporation filed an answer in said cause, but Employers' Liability Assurance Corporation reserved its rights to deny liability to Paramount, and Paramount agreed to such reservation of rights.

"Thereafter a trial was had of such cause and judgment was rendered in favor of F. J. McMenamin against Paramount Pictures Distributing Company, Inc., in the sum of $3000, and an 11/12 interest in such judgment was thereafter purchased by Josh H. Groce, attorney for Employers Liability Assurance Corporation, by the payment of the sum of $2250, and Josh H. Groce attorney for Employers' Liability...