Green v. American General Ins. Co.
| Decision Date | 02 February 1962 |
| Docket Number | No. 16291,16291 |
| Court | Texas Court of Appeals |
| Parties | Pauline GREEN, Individually and as Next Friend for Patricia Ann Green, et al., Appellants, v. AMERICAN GENERAL INSURANCE COMPANY et al., Appellees. |
Passman, Jones & Whitener, and Bill C. Hunter, Dallas, for appellant.
Bailey & Williams, and James A. Williams Dallas, for appellee American General Ins. Co.
Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee Superior Ins. Co.
Plaintiff Pauline Green, acting individually and as next friend of her minor children, brought suit against defendants American General Insurance Company and Superior Insurance Company, to collect the benefits afforded to Howard Lewis by certain policies of liability insurance. Predicate for the action so brought lay in an antecedent suit the same plaintiffs had prosecuted to judgment against Lewis. An execution levied upon Lewis under the judgment was returned nulla bona. It was the plaintiffs' contention in the subsequent suit that the defendants were liable, under and by virtue of the policies of insurance.
The insurance companies filed motions for summary judgment, and following hearing of said motions summary judgment was rendered in the companies' behalf and that plaintiffs take nothing by suit against them on such insurance policies. From this judgment the plaintiffs appealed.
Judgment affirmed.
On April 13, 1958, the automobile driven by Lewis upset in Louisiana and resulted in injuries causing the death of plaintiffs' decedent, a passenger in the car. Lewis owned an automobile on which there was a policy of liability insurance. The automobile being driven at time of the fatal upset, however, was a borrowed car. This vehicle was also covered by a policy of liability insurance, although in a separate company. Hence, the occasion of two rather than a single insurance company as the defendants in the instant case. One company, under a 'non-waiver agreement' taken from Lewis, defended him in the tort suit brought by plaintiffs. After judgment was obtained against Lewis plaintiffs brought this action against the companies, who answered with a plea of res adjudicata and estoppel by judgment.
At first glance it would seem that the doctrine of res adjudicata would not be available to companies to be plead as a defense to the action brought on the policies issued by them by reason of the fact that the companies were not parties to the former suit between plaintiffs and Lewis. There is a well-defined exception, however, such as typified in the instant situation, where the companies' liability to plaintiffs is secondary and derivative. If the jury had determined in the suit of plaintiffs against Lewis that Lewis was not negligent and therefore not liable to plaintiffs, then the companies would have been acquitted of all liability along with Lewis, for their liability could only have been secondary and derived from the primary liability of Lewis.
As applied to issues posed in the instant suit, which was finally disposed of by virtue of the finality of the judgment in the prior suit, either party would have been entitled to set up the plea of res adjudicata. Therefore, even though Lewis' liability was established by the judgment of the prior suit, it is determined from a reference to said judgment that the judge who entered it did so despite the fact that the jury found that plaintiffs' decedent assumed the risk of injury, because of the jury's further findings, on special issues in which the burden was cast upon the plaintiffs, that said decedent was at the time of injury an employee of Lewis and was furthermore engaged in the course of said employment. We believe that the effect of the plea advanced, coupled with the evidence bearing thereupon, established as a matter of law that plaintiffs' decedent was, at the time of his injuries...
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