Hankey v. Employer's Casualty Co.
| Decision Date | 11 November 1943 |
| Docket Number | No. 11570.,11570. |
| Citation | 176 S.W.2d 357 |
| Parties | HANKEY et al. v. EMPLOYER'S CASUALTY CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Action by Fred O. Hankey and another against Employers Casualty Company and others on an automobile theft insurance policy, and for exemplary damages for insurer's alleged wanton, willful, malicious and fraudulent conversion of plaintiffs' automobile, wherein Valeska C. Gerlich intervened as assignee of the cause of action. From a judgment dismissing the petition for want of jurisdiction because of amount in controversy, after denial of plaintiffs' application for leave to amend, plaintiffs appeal.
Reversed and remanded.
Fuchs & Fuchs, of New Braunfels, and David L. Tisinger, of Austin (Hollers & Tisinger, of Austin, of counsel), for appellants.
W. Sale Lewis and Wood & Wood, all of Austin, for appellees.
The court sustained the defendants' plea that it appears upon the face of plaintiff's petition that, in so far as said petition exhibited a cause of action which was legally sufficient, the amount involved in plaintiff's cause of action was below the jurisdiction of the district court, and dismissed plaintiff's suit for want of jurisdiction.
The defendants other than the insurance company were alleged by plaintiff to be representatives of said company. It would serve no useful purpose, in passing upon the question of whether or not plaintiff's petition asserted a cause of action within the court's jurisdiction, to refer hereafter to the defendants other than the insurance company; so, in the interest of brevity, for the purposes of this opinion, plaintiff's suit will hereafter be treated as brought solely against one defendant—the insurance company. Valeska C. Gerlich intervened in the suit, asserting that plaintiff had assigned her an interest in his cause of action. As said intervention asserts no rights except by, through and under plaintiff, further mention of it will also be omitted.
Plaintiff sued the insurance company to recover $355 upon a policy of insurance which had been issued to him by the insurer to indemnify him against loss or damage to his automobile by reason of theft. Plaintiff also sued the insurance company, hereafter referred to as "insurer", to recover $45 which plaintiff alleged was the value of his automobile in its damaged condition when recovered after it had been stolen, and which plaintiff alleged the insurer wrongfully converted to its own use. Plaintiff also sued to recover $2,000 as exemplary damages, alleging that the insurer had wantonly, willfully, maliciously, and fraudulently converted his said automobile in its damaged condition. Apparently the court held that plaintiff's petition failed to allege any legal basis to recover exemplary damages from the insurer, and that it was impossible by amendment to allege any legal basis for the recovery of exemplary damages from the insurer, and for this reason dismissed the suit for want of jurisdiction. The plaintiff's averments with reference to the alleged conversion by the insurer of the automobile in its damaged condition, and his averments asserting the right to recover exemplary damages are all that need be considered on appeal. More fully stated, said averments were in substance as follows:
That by the terms of the policy of insurance, the insurer had the option either to pay plaintiff the agreed or appraised value of the automobile at the time it was stolen (which was March 18, 1941) and take title thereto, or to return it to plaintiff and pay him the difference between the value of the automobile when it was stolen and its value in its damaged condition when recovered. That the insurer duly elected not to take title to the automobile but to return it to plaintiff, and to pay him the amount of the damages thereto, and so notified plaintiff.
That thereafter the insurer, under pretense of trying to adjust the damages to the automobile with plaintiff, spun out time for a great while, beguiling plaintiff with tentative offers of settlement which, as often as plaintiff would indicate were acceptable to him, the insurer would withdraw, under pretense that it needed to make further investigation, and would later make a new but lower tentative offer of settlement. That the insurer's purpose in thus protracting negotiations was not to investigate values but was to deprive plaintiff of the use of his automobile and by so wrongfully depriving him of the use of an automobile force him to ransom his automobile by accepting a settlement much less than he was entitled to under the policy of insurance. That the insurer by its dilatory tactics and persistent failure and refusal to perform its obligations, as it had elected to perform, constituted a conversion by the insurer of plaintiff's automobile. That said conversion by said fraudulent practices was wanton, willful and malicious, and authorizes the assessment of exemplary damages.
It appears by plaintiff's bill of exceptions No. 1, that he requested leave to amend his petition when his cause was ordered dismissed, and shows that his tendered amended petition added to the foregoing averments, averments which in substance alleged: That after the insurer had elected not to take title to the automobile, and while it had custody and possession of plaintiff's automobile, plaintiff demanded of the insurer that it surrender same back to him. That the insurer refused plaintiff's demand, and informed him that his demand for possession of his automobile would not be granted until he settled his claims against the insurer upon terms dictated to him by it. That the insurer converted the automobile to its unlawful purpose of forcing a settlement of plaintiff's claim under the policy of insurance upon its own claims. The aforesaid bill of exceptions shows that the court refused to permit the tendered amended pleading to be filed.
It is the insurer's position on appeal that the plaintiff's petition alleges that under the terms of the policy of insurance, the insurer had the option either to take the automobile in its damaged condition and pay the appraised value of it at the time it was stolen, or to return it in its damaged condition and pay plaintiff the amount of damages sustained in the sum of $355; and that if plaintiff's allegations be taken as true the most that he can possibly recover is $400. That according to such allegations, the insurer could keep the car and pay plaintiff $400, or return it and pay plaintiff $355.
The rule is that "in a case admitting of reasonable doubt as to whether the amount in controversy is within the jurisdiction, and where the plaintiff might have had reasonable ground of expectation of recovering the amount claimed, it being a sufficient amount to give jurisdiction, the case will not be dismissed for want of jurisdiction." Dwyer v. Bassett & Bassett, 63 Tex. 274, 276. The rule is further, "In doubtful cases of this character all intendments will be in favor of the jurisdiction." Id. Again, our Supreme Court states in Pecos & N. T. R. Co. v. Rayzor, 106 Tex. 544, 172 S.W. 1103, 1105, Complying with the rule referred to, we have construed plaintiff's petition as alleging that the insurer exercised its option not to take title to the automobile, but to return it to the plaintiff and to pay him damages; that after thus having renounced its right to take title to the automobile, it nevertheless retained possession of the automobile, etc. If such allegations be but a legal conclusion of the pleader, it gave fair notice to the insurer that plaintiff was asserting that the insurer had renounced any right to take title to the automobile and had elected to stand upon its right to return the automobile and pay damages. Rule 45 (b), Texas Rules of Civil Procedure, permits the pleading of a legal conclusion if the pleader's adversary is not misled thereby. The insurer did not specially except to plaintiff's petition on the ground that it contained legal conclusions. The petition sought to state a cause of action against the insurer for $2,400; the court held that it failed to do so, and dismissed it for failure to state a cause of action within the court's jurisdiction. This action, in effect, sustained a general...
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