Pageway Coaches v. Bransford

• Decision Date: 20 April 1934
• Docket Number: No. 1256.,1256.
• Citation: 71 S.W.2d 561
• Parties: PAGEWAY COACHES, Inc., et al. v. BRANSFORD.
• Court: Texas Court of Appeals

71 S.W.2d 561

PAGEWAY COACHES, Inc., et al. v. BRANSFORD.

No. 1256.

Court of Civil Appeals of Texas. Eastland.

April 20, 1934.

Rehearing Denied May 11, 1934.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action by J. H. Bransford against Pageway Coaches, Inc., and others, in which defendant American Fidelity & Casualty Company filed a plea of privilege. Judgment for plaintiff, and Pageway Coaches, Inc., and another appeal.

Reversed and remanded.

Turner, Seaberry & Springer, of Eastland, for appellants.

Grisham Bros., and J. A. Lantz, all of Eastland, for appellee.

FUNDERBURK, Justice.

J. H. Bransford, for himself and wife, and as next friend of Kenneth Bransford, a minor child, brought this suit in Eastland county against the Pageway Coaches, Inc., George W. Page, and American Fidelity & Casualty Company, a foreign corporation, all nonresidents of Eastland county, to recover damages for personal injuries to himself, his said wife, and child, and damages for injuries to an automobile. The injuries were the result of a collision occurring in Eastland county, between a bus owned and operated by Pageway Coaches, Inc., and an automobile belonging to, and operated by, the said J. H. Bransford. Pageway Coaches, Inc., was sought to be held liable on a number of different grounds of negligence. The allegations upon which American Fidelity & Casualty Company was sought to be held liable were "* * * that the Pageway Coaches, Inc. * * * at the time of the collision * * * were operating said bus as a common carrier for hire in and through Eastland County * * * under and by virtue of the laws of the State of Texas, and regulations and authority of the Railroad Commission of the State of Texas; that under the laws and said regulations * * * the defendants were required to obtain and carry what is known as `public liability insurance' for the protection of plaintiff, his family and property, and the public generally, against the negligent act or acts of the defendants. * * * Pursuant to said obligation, said defendants did obtain and did at said time carry a written policy of public liability insurance with the American Fidelity & Casualty Company, and said policy * * * was conditioned and payable as provided by law, and was conditioned and payable as provided by the rules and regulations of the Railroad Commission of the State of Texas, and which policy at said time was in full force and effect * * * covering the motor bus so operated at the time and place and under the terms of which policy, as well as under the terms and provisions of the laws and rules and regulations of the Railroad Commission of the State of Texas, the said defendant insurance company became liable and obligated and promised to pay to the plaintiff in his own behalf, and on behalf of the said other members of his family, damages sustained by reason of the negligence of the said defendants," etc. (Italics ours.) The prayer was for judgment against the defendants, jointly and severally, for the sum of $2,999, costs, etc.

The defendant American Fidelity & Casualty Company filed a plea of privilege and, subject to same, a plea in abatement for the misjoinder of parties and causes of action, both of which pleas were overruled. Pageway Coaches, Inc., also filed a plea in abatement for like misjoinder, which was overruled. The plea of privilege and pleas in abatement were by order of the court tried at the same time with the merits of the suit.

The jury, to whom the case was submitted on special issues, found all issues in favor of the plaintiff, and against the defendants Pageway Coaches, Inc., and American Fidelity & Casualty Company, except one issue as follows: "Do you find from a preponderance of the evidence that the collision in question was not the result of an unavoidable accident as that term is defined in this charge?" To this issue the jury answered, "No." The definition referred to was: "Unavoidable accident, as that term is used, is meant an accident which occurs or exists where the injuries or damages are not proximately caused by any negligence of commission or omission on the part of either the plaintiff or defendants. It is an accident that is not contributed to by the negligence of either party." Judgment was for plaintiff against the last-named defendants, George W. Page having been dismissed from the suit.

The first question, in due order presented for our determination, is whether or not the court erred in overruling the plea of privilege of the insurance company. The question is not free from considerable difficulty and we have concluded that for reasons which will hereinafter appear, it is not necessary that we pass upon it.

Whether the court may have erred in overruling the plea in abatement of the insurance company is a question not really presented unless we hold that the plea of privilege was properly overruled. We shall, therefore, pass to the question involving the court's action upon the plea in abatement of the Pageway Coaches, Inc. Did the court err in overruling that plea? Appellee, in a very able and comprehensive brief, implies the opinion, that the question is controlled by the answer to the further question of whether or not the character of insurance evidenced by the policy is indemnity insurance, or liability insurance. We are not convinced that the question is altogether dependent upon whether or not the character of insurance is properly to be denominated "indemnity insurance" or "liability insurance." "Indemnity insurance," as we understand it, protects the insured only against loss, and hence even if there be liability from which potential loss may result, but no loss actually occurs, the liability of the insurer does not accrue. "Liability insurance," on the other hand, protects the insured not merely against loss, but liability for loss or damages, and hence when the insured's liability accrues, or is established (whichever the policy provides), the obligation of the insurer accrues. But, if not forbidden by law, the parties to the contract of insurance may provide that the liability of the insurer shall only accrue when the liability of the insured shall be established in a particular way, as by a judgment of court. If the policy so provides, it is not for that reason any the less a contract for liability insurance. Neither does it follow that any third party would have the right to enforce liability of the insurer until the insured's liability...