Hartford Accident and Indemnity Company v. Weaver, 7972

• Decision Date: 15 September 1977
• Docket Number: No. 7972,7972
• Citation: 556 S.W.2d 117
• Parties: HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Joseph May WEAVER, Appellee.
• Court: Texas Court of Appeals

Page 117

556 S.W.2d 117

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v.Joseph May WEAVER, Appellee.

No. 7972.

Court of Civil Appeals of Texas.

Sept. 15, 1977.

Rehearing Denied Oct. 6, 1977.

Russell H. McMains, R. D. McPherson, Houston, for appellant.

Watkins & Hamilton, Joe E. Turner, Houston, for appellee.

DIES, Chief Justice.

On March 16, 1971, Joseph May Weaver, plaintiff below, filed suit against Clyde Lee Busch for $11,800 for injuries received in an automobile collision with Busch.Citation was obtained on Busch.On September 24, 1971, plaintiff amended his petition to bring in J. C. Thomas, d/b/a Thomas Enterprises, alleging that at the time of the collision Busch was an employee of Thomas, acting in the course and scope of his employment.Plaintiff also increased his prayer for damages to $201,800.The record does not reflect that the amended petition was served on Busch.Thomas was insured by Hartford Accident & Indemnity Company, and he delivered the court papers to Hartford.It is undisputed that Busch did not deliver the court papers to Hartford.

On October 18, 1971, Thomas answered the plaintiff's amended petition denying "that at the time and on the occasion in question, and under the circumstances there existing, it would be in any way responsible for the acts or omissions of the defendant Busch."

Thereafter (our record does not reveal the date, but the attorneys in oral argument declared it to be in February 1973 when the case was called for trial), plaintiff moved the court to dismiss J. C. Thomas, d/b/a J. C. Thomas Enterprises, as defendant, which was done.

Thereafter, on February 12, 1973, the court entered an "Interlocutory Judgment by Default" against Clyde Lee Busch for $114,433.96, plus six percent per annum.

The casewe review here was filed by plaintiffJoseph May Weaver June 21, 1973, against Hartford Accident and Indemnity Company on the February 1973 default judgment against Busch alleging that the September 1969 collision was occasioned by the "negligent operation of an automobile owned by J. C. Thomas, d/b/a J. C. Thomas Enterprises, operated with his permission, and covered by said policy (The Hartford policy)."

This case was tried to a jury in Montgomery County which found that at the time of the wreck between the vehicle driven by Clyde Lee Busch and plaintiffJoseph May Weaver, that Busch was an insured under the Hartford Accident and Indemnity Company policy issued to J. C. Thomas, d/b/a J. C. Thomas Enterprises.An "insured" was defined by the court as any person operating a J. C. Thomas, d/b/a J. C. Thomas Enterprises, vehicle with the permission of the named insured provided his actual operation is within the scope of such permission.

Thereafter, on November 15, 1976, judgment was given Weaver against Hartford for $100,000, and from which Hartford has perfected this appeal.

Hartford has a point that the court erred in overruling its motion for judgment because the stipulations of the parties and undisputed evidence established as a matter of law that Clyde Lee Busch had failed to forward to Hartford the citation and suit papers, which action was a condition precedent to Hartford's liability under the insurance policy.It was stipulated by counsel for plaintiff Weaver and counsel for Hartford that Busch had never...