Indemnity Co. of America v. Pitts, 4013.

• Decision Date: 07 May 1931
• Docket Number: No. 4013.,4013.
• Citation: 38 S.W.2d 883
• Parties: INDEMNITY CO. OF AMERICA et al. v. PITTS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

38 S.W.2d 883

INDEMNITY CO. OF AMERICA et al. v. PITTS et al.^*

No. 4013.

Court of Civil Appeals of Texas. Texarkana.

May 7, 1931.

Rehearing Denied May 14, 1931.

Error from District Court, Dallas County; Claude McCallum, Judge.

Suit by Florence Pitts and husband against the Indemnity Company of America and another. Judgment for plaintiffs, and defendants bring error.

Affirmed.

After this suit was commenced by Florence Pitts against plaintiffs in error Indemnity Company of America and Albert S. Kakisaki, she married her co-defendant in error C. T. Walling, who joined her in the prosecution thereof.

In her petition, Florence Pitts alleged that on February 9, 1929, she recovered a judgment in cause No. 70471, in a Dallas county district court against said Albert S. Kakisaki for $6,374.35 on account of personal injury she received in an automobile collision which occurred in March, 1927; that in February, 1927, the indemnity company made and delivered to Kakisaki a policy, a copy of which was made a part of the petition, whereby it insured him for a year from that time "against (quoting) loss from death and personal injuries to third persons accidentally suffered by any person or persons (except employes of the assured) as the result of an accident

occurring while said policy was in force and in an amount not exceeding the sum of $10,000.00"; that in March, 1927, "and while said policy was in full force and effect," Kakisaki "negligently, carelessly and unlawfully ran into and against the automobile in which the said Florence Pitts was riding as an invited guest," thereby overturning same and "permanently injuring her, for which said injuries said judgment was rendered"; that the policy contained a stipulation as follows: "In the event a judgment against the assured, arising out of an accident covered under this policy, is returned unsatisfied, because of assured's insolvency or bankruptcy, an action may then be maintained against the Company by the party in whose favor judgment was rendered, or in case of his death, by his personal representatives, for the amount of the judgment, not exceeding the limits of the policy, provided, however, that such party must secure the written consent of the assured, or in case of the assured's death, of assured's personal representative;" that after said judgment became final Florence Pitts caused an execution issued thereon to be placed in the hands of the sheriff, who, because he was unable to find property belonging to said Kakisaki on which to levy the writ, returned same unsatisfied; that Kakisaki was wholly insolvent and had been since said judgment was rendered; that, "by virtue of the provisions of said policy and of the facts above set out," Florence Pitts claimed "the right to resort to this suit for redress"; that the indemnity company, "in accordance (quoting) with the provisions of its said policy took charge of the defense of said suit of plaintiff (Florence Pitts) against the defendant Kakisaki, provided a lawyer and paid the expense of same and wholly controlled said action on behalf of defendant and it thereby recognized its liability under said policy and waived any defense it might have had as to any claim of the assured thereunder, and is now estopped from setting up any defense to said claim and is bound by said judgment"; that "by virtue of the terms and provisions of the policy" set out above it became Kakisaki's duty "to either pay off said judgment obtained by plaintiff against him or, in the event of his inability to do so on account of insolvency, to deliver to plaintiff his consent in writing for her to sue defendant Indemnity Company of America upon its policy and to enforce the judgment obtained by her against him as aforesaid. That in order to evade his said duty and for the fraudulent purpose of defeating plaintiff's right to proceed against the said Indemnity Company of America as provided for in said policy and under the judgment above referred to, the said Albert S. Kakisaki conspired and colluded with the said Indemnity Company of America to make a pretended cancellation of said policy and for a valuable consideration paid to him, the said Albert S. Kakisaki executed a pretended release of his claim against the said Indemnity Company of America arising out of the matters and things on account of which plaintiff recovered judgment; and that said pretended release and cancellation of said policy was obtained in fraud of plaintiff's rights and for the purpose, participated in by both parties thereto, and because thereof said release and cancellation of said policy never became valid and binding against this plaintiff."

The answer of the indemnity company consisted of general and special exceptions questioning the sufficiency of the petition, a general denial, and pleas setting up conditions specified in the policy, compliance with which, it alleged, were indispensable to the existence of any liability on its part to Florence Pitts, and which conditions, it asserted, were not complied with. The answer of Kakisaki consisted of a plea questioning the right...