Pioneer Cas. Co. v. Bush

• Decision Date: 25 June 1970
• Docket Number: No. 486,486
• Citation: 457 S.W.2d 165
• Parties: PIONEER CASUALTY COMPANY, Appellant, v. Elton Glynn BUSH et al., Appellees.
• Court: Texas Court of Appeals

Page 165

457 S.W.2d 165

PIONEER CASUALTY COMPANY, Appellant, v. Elton Glynn BUSH et al., Appellees.

No. 486.

Court of Civil Appeals of Texas Tyler.

June 25, 1970.

Rehearing Denied July 16, 1970.

James N. Phenix, Henderson, for appellant.

Fairchild, Hunt & Price, Center, for appellees; Robert Fairchild, Center, of counsel.

MOORE, Justice.

This is an appeal from a summary judgment entered below in favor of the plaintiff, Elton Glynn Bush, in a suit on an automobile liability policy. The suit arose out of appellant's Pioneer Casualty Company, refusal to pay a judgment for $10,000 entered in a previous case in favor of Elton Glynn Bush, against his brother Coye DeWayne Bush for personal injuries received as the result of a truck accident.

Appellant had sold to Coye D. Bush, the father of Elton Glynn and Coye DeWayne, an automobile policy insuring a 1968 Chevrolet dump truck which was used, along with a 1963 Chevrolet dump truck, in his business of hauling sand, dirt and gravel. The policy covered any person driving the truck with the consent of the named insured.

On the morning of August 19, 1968, Mr. Bush instructed his two sons to take the trucks to his service station to be fueled preparatory to the day's work. Elton, then 16 years old, started out in the 1963 truck, followed in the 1968 truck by his brother Coye, who was at the time 14 years old. Somewhere along the way, Elton's truck stalled; he pulled it to the side of the road and climbed under it to replace a wire on the starter. For some reason, Coye failed to stop soon enough, running into the rear of the stalled truck, pushing its rear wheels over his brother and then running over him with the front wheels of the 1968 truck. Elton suffered extensive head, neck and chest injuries.

Suit was brought by Elton, through his uncle as next friend, against Coye for damages resulting from the injury. That suit resulted in a judgment in favor of Elton for the sum of $10,000. Demand was made of appellant to pay the judgment on the basis that Coye was an insured under the policy, thereby making Pioneer Casualty Company liable for the judgment. When Pioneer denied liability, Elton Glynn Bush, through next friend, filed the present suit against the insurance company. Subsequently he filed a motion for summary judgment. After a hearing, summary judgment was entered in favor of appellee, Elton Glynn Bush, and the insurance company perfected this appeal.

Appellant's main contention below and here is that both Elton and Coye were employees of the named insured, Coye D. Bush, their father, and therefore a recovery by appellee was prohibited under the following exclusionary clause in the policy:

'* * * The insurance with respect to any person or organization other than the named insured or such spouse does not apply:

(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.'

The policy did not contain any provision excluding liability for injury inflicted by one member of the household upon another member of the household.

In his motion for summary judgment, appellee takes the position that the proof conclusively shows that both he and his brother were unemancipated minors at the time of the accident. Therefore he contends that neither of them could enter into a binding contract with their father so as to create an employer-employee relationship. Hence he argues that since there was no employer-employee relationship, he was not subject to the exclusionary clause in the policy and that the summary judgment must be sustained. The insurance company resisted the motion for summary judgment by pleading that both appellee and his brother were employees and subject to the exclusionary clause in the policy. The company also offered the deposition testimony of Mr. Bush, Elton, and Coye, which it contends was sufficient to raise an issue of fact upon the question of whether or not appellee and his brother were employees of their father. Therefore the insurance company contends that the trial court erred in granting a summary judgment.

After a review of the authorities, we find that we are not in accord with appellee's proposition that a minor cannot contract with the father. With the exception of a limited type of contract, the contract of a minor whose disability has not been judicially removed is not void but only voidable at the minor's instance. Brown v. Farmers' & Merchants' Nat. Bank of Cleburne, 88 Tex. 265, 31 S.W. 285 (1895); Prudential Building & Loan Ass'n v. Shaw, 119 Tex. 228, 26 S.W.2d 168, 27 S.W.2d 157 (1930); Sims v. University Interscholastic League, 111 S.W.2d 814 (Tex.Civ.App., Beaumont, 1937, dismissed as moot, 131 S.W.2d 94); Rutherford v. Hughes, 228 S.W.2d 909 (Tex.Civ.App., Amarillo, 1950, n.w.h.). Emancipation, either express or implied, constitutes only an agreement by the parent to relinquish his parental rights to control the minor and to the minor's services and earnings. Furrh v. McKnight, 6 Tex.Civ.App. 583, 26 S.W. 95 (1894, n.w.h.); Weimhold v. Hyde, 294 S.W. 899 (Tex.Civ.App., Amarillo, 1927, n.w.h.); Durham v. I.C.T. Insurance Co., 283 S.W.2d 413 (Tex.Civ.App., Dallas, 1955, writ dism.). It has also been held that an unemancipated minor may enter into a valid contract of employment with a stranger and the father can make any contract with his minor son that a stranger could make. Chauncey v. Gambill, 126 S.W.2d 775 (Tex.Civ.App., Ft. Worth, 1939, dism., judg. cor.). Thus, if an unemancipated minor can contract with a parent, the question of whether either or both sons of the insured had or had not been emancipated would not control the disposition of the case, as appellee contends.

As we view the record, the controlling issue is whether or not both minor sons were employees of their father. If so, appellee would be subject to the provisions of the exclusionary clause of the policy.

In construing similar provisions in public liability policies, the courts have held that in order for the foregoing exclusionary clause to become applicable, both the injured party and the tortfeasor must be employees of the insured and the injury must have occurred in the course and scope of employment. 7 Am.Jur.2d, p. 458, sec. 133 and the cases cited in notes 8 and 9.

Since this is an appeal from an order sustaining a motion for summary judgment pursuant to Rule 166--A, Vernon's Texas Rules of Civil Procedure, the sole question is whether a genuine issue of material fact is presented by the pleadings, affidavits and other documents presented to the trial court. The burden of demonstrating that no genuine issue as to any material fact exists rests upon the party filing the motion for summary judgment. In determining the question of whether a genuine issue of material fact is presented, we must view the record in a light most favorable to the party opposing the motion and accept as true the evidence which tends to support its position. Rule 166--A, Vernon's Texas Rules of Civil Procedure; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, Tex., 391 S.W.2d 41, 47; Manney & Company v. Texas Reserve Life Insurance Company, 407 S.W.2d 345, (Tex.Civ.App., Dallas, 1966, n.w.h.); White v. Lakewood Bank and Trust Company, 438 S.W.2d 129, 131 (Tex.Civ.App., Dallas, 1969, n.w.h.).

We recognize, and...