Jones v. Harper

• Decision Date: 15 November 1965
• Docket Number: No. 7744,7744
• Citation: 1965 NMSC 136,75 N.M. 557,408 P.2d 56
• Parties: William J. NONES, Plaintiff, v. Afred HARPER, Defendant, v. Frank DERRICK, Jr., and Consolidated Music Company, a partnership, Third-Party Defendants-Appellants, v. ALLSTATE INSURANCE COMPANY, Inc., a corporation, Third-Party Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 56

408 P.2d 56

75 N.M. 557

William J. NONES, Plaintiff, v. Afred HARPER, Defendant, v. Frank DERRICK, Jr., and Consolidated Music Company, a partnership, Third-Party Defendants-Appellants, v. ALLSTATE INSURANCE COMPANY, Inc., a corporation, Third-Party

Defendant-Appellee.

No. 7744.

Supreme Court of New Mexico.

Nov. 15, 1965.

James L. Dow, Carlsbad, for appellants.

Hinkle, Bondurant & Christy, Michael R. Waller, Roswell, for appellee.

CHAVEZ, Justice.

Third party defendants, Frank H. Derrick, Jr., and Consolidated Music Company, a partnership, appeal from an order granting a summary judgment in favor of Allstate Insurance Company, Inc., a corporation, third party defendant-appellee.

William J. Jones, plaintiff in the court below, filed suit seeking damages against Alfred Harper for unlawful and malicious assault. The trial court heard the case without a jury and rendered judgment for plaintiff, awarding him both actual and punitive damages. Defendant Harper filed notice of appeal, which appeal was later abandoned.

Thereafter, plaintiff filed a motion for a charging order seeking to charge the assets of Consolidated Music Company, a partnership composed of Frank H. Derrick, Jr. and defendant Alfred Harper. Consolidated Misic Company filed a petition to allow them to be joined as third party defendants which was granted. The trial court, after a hearing, entered an order charging all partnership assets with payment of the judgment entered in favor of plaintiff. Third party defendants filed a petition to join Allstate Insurance Company, Inc. as a third party defendant and the trial court entered an order joining said insurance company as a third party defendant.

Third party defendants, Derrick and Consolidated Music Company, filed a complaint praying judgment against Allstate Insurance Company. Allstate Insurance Company filed a motion for summary judgment and the trial court, after a hearing, granted the motion and entered an order dismissing the third party complaint of Frank H. Derrick, Jr. and Consolidated Music Company. It is from this order that appeal is taken. William J. Jones, the original plaintiff, and Alfred Harper, the original defendant, are not involved in this appeal. The trial court on its own motion entered an order modifying the charging order to the extent that it be a charge only against the interest of Alfred Harper in the partnership assets of Consolidated Music Company.

On the date of the assault Allstate Insurance Company, Inc., a corporation, hereinafter referred to as 'Allstate,' had in force a policy of insurance with defendant Alfred Harper and Frank H. Derrick, Jr., d/b/a Consolidated Music Company. The insurance contract provided:

'INSURING AGREEMENTS

'I Coverage A--Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident. '* * *

'CONDITIONS

'(h) Assault and Battery, Assault and battery shall be deemed in accident unless committed by or at the direction of the insured.

'* * *

'PARTNERS AS NAMED INSURED

'It is agreed that the policy applies to named partners of the partnership named in the declarations only while acting within the scope of their duties as such.

'Alfred D. Haper, Frank H. Derrick.

'* * *.'

The assault and battery was committed by defendant Harper and was not committed by or at the direction of the insured, Consolidated Music Company or Frank H. Derrick, Jr. The trial court, in its decision, stated:

'* * * There has been no finding here, nor under the facts presented at the trial of the case could there be any finding sustained, that Harper, in the commission of the assault involved herein, was engaged in the ordinary course of the partnership business.'

The court concluded:

'(b) There is no allegation that Harper was acting within the scope of the partnership business at the time of the assault, and indeed, all the evidence in the case third by this Court made no suggestion that he was engaged in anything but a personal mission connected with his own personal past business transactions.'

In its decision on the motion for summary judgment of appellee Allstate, the trial court found that the charging order was entered 'with the consent and at the request of all the parties, obviously in an effort to bind this insurer.'

After the entry of the summary judgment and after the trial court had entered its modified charging order so that the charging order ran only to the interest of Alfred Harper in the partnership, the partnership settled and paid the judgment.

Appellants' point I states:

'THE COURT ERRED IN ITS HOLDING: THAT A CHARGING ORDER ISSUED BY THE COURT AGAINST THE PARTNERSHIP UNDER PROVISIONS OF SECTION 66-1-28, N.M.S.A., 1953 COMP, AND ANY PAYMENT OF JUDGMENT MADE PURSUANT TO SAID ORDER BY THE PARTNERSHIP WAS NOT COVERED UNDER THE TERMS OF THE POLICY OF PUBLIC LIABILITY INSURANCE ISSUED BY APPELLEE ALLSTATE INSURANCE COMPANY TO APPELLANT CONSOLIDATED MUSIC COMPANY, THE INSURED THEREEIN.'

It is undisputed that the assault and battery committed by defendant Harper upon the plaintiff was committed by Harper while acting in his own behalf and not in a partnership capacity or on partnership business.

Appellants appears to argue that, since the assault was not committed by either of them, Allstate's liability under the policy is plain under the first two provisions hereinbefore quoted. However, appellants are confronted with the third provision, also quoted above, that for liability on the policy to arise because of the conduct of...