Kuntz v. Spence

• Decision Date: 14 November 1931
• Docket Number: No. 12563.,12563.
• Parties: KUNTZ et al. v. SPENCE et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

48 S.W.2d 413

KUNTZ et al. v. SPENCE et ux.^*

No. 12563.

Court of Civil Appeals of Texas. Fort Worth.

November 14, 1931.

On Appellees' Motion for Rehearing January 9, 1932.

On Appellants' Motion for Rehearing February 13, 1932.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Action by Sam B. Spence and wife against J. Earle Kuntz and wife and another. Judgment for plaintiffs, and defendants bring error.

Affirmed.

T. R. Boone, E. T. Duff, and Clyde Brannan, all of Wichita Falls, for appellants.

Davenport & Crain and W. E. Fitzgerald, all of Wichita Falls, for appellees.

DUNKLIN, J.

During a visit of Mrs. Letha Spence and her minor child, Toy Spence, in the home of Mr. J. Earle Kuntz and wife, Mrs. Vera Kuntz, in the city of Wichita Falls, Mrs. Kuntz started to a store in her automobile for the purpose of purchasing groceries. Toy Spence, 3 years of age, was placed in the back seat of the automobile by Mrs. Kuntz before she backed the same out of the driveway. The car was then backed out into the street, and, when it suddenly stopped near the opposite side of the street, one of the doors came open, through which the child fell to the street, and injuries sustained by striking the hard surface resulted in her death.

This suit was instituted by Mr. Sam B. Spence and wife, Mrs. Letha Spence, to recover damages against J. Earle Kuntz and wife, Mrs. Vera Kuntz, and the Employers' Casualty Company for the death of their child, Toy Spence. In their pleadings plaintiffs claimed damages aggregating $26,500 as follows: $1,000 for the funeral expenses of the child; $10,000 for loss of services of the child during the period of her minority; and $15,000 for contributions she would have made to plaintiffs in money and property after she had reached the age of 21 years. From a judgment in plaintiffs' favor, the defendants have prosecuted a writ of error.

The case was tried before a jury, and the following are the special issues submitted to them with their findings thereon:

"1. Do you find from a preponderance of the evidence that the accident at the time and place in question was not unavoidable? Answer: Yes.

"2. Do you find from a preponderance of the evidence that the failure, if any, of the defendant, Mrs. J. Earle Kuntz, to inspect the right rear door of the automobile to see that it was closed before starting said automobile at the time and place in question was negligence, as that term has been defined to you? Answer: Yes.

"3. Do you find from a preponderance of the evidence that such negligence, if any, of the defendant, Mrs. J. Earle Kuntz, was a proximate cause of the injury to Toy Spence? Answer: Yes.

"4. Do you find from a preponderance of the evidence that the manner in which the defendant, Mrs. J. Earle Kuntz, backed the automobile at the time and place in question was negligence? Answer: Yes.

"5. Do you find from a preponderance of the evidence that such negligence, if any, in backing said automobile was a proximate cause of the injury to Toy Spence? Answer: Yes.

"6. From a preponderance of the evidence what amount of money, if any, if paid now in cash, would reasonably compensate the plaintiffs for the loss of the earnings, if any, of their child, Toy Spence, from the time of the injury until she reached the age of 21 years, if she lived that long? Answer: o (nought).

"7. From a preponderance of the evidence, what amount of money, if paid now in cash, would reasonably compensate the plaintiffs for the loss of contributions of money or property, if any, which the deceased Toy Spence would have been reasonably expected to make to the plaintiffs after she reached the age of 21 years, if she lived that long? Answer: $5,000.00."

The judgment rendered, after reciting the verdict, concluded as follows:

"And it further appearing to the court from the evidence that the defendant Employers' Casualty Company had before the date of the accident, issued its policy of insurance to J. Earle Kuntz, providing that it would pay any damage caused by the said car not to exceed $5,000.00 to one person.

"And it further appearing to the court that said policy was in full force and effect on the date that said Toy Spence was injured and that the defendant should pay any and all damages assessed against the said J. Earle Kuntz, in the amount of $5,000.00; and it further appearing to the court from the uncontradicted testimony that said Sam B. Spence and Mrs. Letha Spence, have paid out for actual funeral expenses $176.30, and that the same was reasonable and necessary for the burial of said Toy Spence, the infant of Sam B. Spence and Mrs. Letha Spence, and that they are entitled to recover said amount from J. Earle Kuntz and Mrs. J. Earle Kuntz.

"And it further appearing to the court from the answers submitted that the defendant, Employers' Casualty Company, had before the date of the accident to Toy Spence, issued its policy covering a certain car belonging to the defendant J. Earle Kuntz and that said policy provided that said defendant Employers' Casualty Company would pay all sums which the assured defendant J. Earle Kuntz should become liable to pay as damages imposed upon him by law for bodily injury, including death, accidentally sustained by any person or persons as caused by the ownership, maintenance and use of the automobile described herein. And it further appearing to the court from the answers of the jury that the defendant J. Earle Kuntz, the Assured, and Mrs. J. Earle Kuntz, defendant, by reason of the answers herein submitted has become liable to pay the plaintiffs herein, Sam B. Spence and Mrs. Letha Spence the sum of $5,000.00.

"It is therefore ordered, adjudged and decreed by this court that the plaintiffs, Sam B. Spence and Mrs. Letha Spence, do have and recover of and from the defendants J. Earle Kuntz, Mrs. J. Earle Kuntz and Employers' Casualty Company, jointly and severally, the sum of $5,000.00.

"It is further ordered, adjudged and decreed by the court that the plaintiffs, Sam B. Spence and Mrs. Letha Spence, in addition to the above amount, do have and recover of and from J. Earle Kuntz, and Mrs. J. Earle Kuntz alone the sum of $176.30.

"It is further ordered, adjudged and decreed by the court that the cost herein incurred be and the same is adjudged against the defendants J. Earle Kuntz and Mrs. J. Earle Kuntz, and not against the defendant Employers' Casualty Company."

The issues of negligence found by the jury, upon which they made their findings, were duly alleged in plaintiffs' pleadings, with further allegations that such negligence was the proximate cause of the death of the child.

The basis of the alleged liability of the Employers' Casualty Company consisted of a policy of insurance which had been issued by that company to the defendant J. Earle Kuntz, which was held by him and was in full force and effect at the time the accident occurred. That policy covered insurance against bodily injuries, and also injuries to the automobile owned by the insured resulting from various causes.

The defendants presented a plea of misjoinder of causes of action, in that the suit against J. Earle Kuntz and wife was for tort, and that against the insurance company was upon a contract; and further because, as contended by defendants, the policy sued on was one for indemnity to the assured only, and did not embody direct liability to the plaintiffs, and therefore would not inure to plaintiffs' benefit. In support of their assignment of error to the action of the court in overruling that plea, appellants have cited 1 Texas Jurisprudence, § 42, p. 653. If the contract of insurance was one of liability to the plaintiffs and not merely indemnity to the defendants Kuntz and wife—a question to be hereinafter discussed—then we believe that under the authorities cited there was no error in overruling the plea of misjoinder. We shall quote provisions from that authority as follows: "While recognition is given to the general rule that a cause of action ex delicto and a cause of action ex contractu may not be joined in the same suit, under the liberal practice prevailing joinder of such causes is permitted if they have arisen out of the same transaction or if they relate to the same subject matter and are dependent mainly upon the same evidence. In other words causes arising in tort and in contract may be joined when they are so connected that they may be conveniently and appropriately litigated together. * * * And it has been held that a cause of action for debt may be joined with a cause sounding in tort where both causes relate to the same transaction or where there is privity of interest of the parties in regard to the same subject matter."

Numerous authorities are cited in support of that text, to which may be added the later decision of Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423; American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534.

Whether or not the policy was one of liability to the plaintiff or indemnity only to the assured must be determined by the following provisions contained in it:

"Agreement `A'

"Bodily Injury Liability.

"To pay all sums which the Assured shall become liable to pay as damages imposed upon him by law for bodily injury including death at any time resulting therefrom (herein called `Bodily injury') accidentally sustained by any person or persons if caused by the ownership, maintenance or use of the automobile described in the Declarations for the purpose therein stated. The Company's limit of liability, regardless of the number of Assured, as respects each automobile described, for bodily injury to or death of one person, shall be as first set forth in Item 1, Paragraph C, of the Declarations and subject to that limit for each person its total liability on account of any one accident resulting in bodily injury to or death of more than one person, shall be as second set forth in said Item."

Agreement B...