Purcell v. Metropolitan Cas. Ins. Co. of N. Y., 15439

• Citation: 260 S.W.2d 134
• Decision Date: 19 June 1953
• Docket Number: No. 15439,15439
• Parties: PURCELL et al. v. METROPOLITAN CAS. INS. CO. OF NEW YORK.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 134

260 S.W.2d 134

PURCELL et al. v. METROPOLITAN CAS. INS. CO. OF NEW YORK.

No. 15439.

Court of Civil Appeals of Texas, Fort Worth.

June 19, 1953.

Dawson, Jones, Parish & Fillmore, of Wichita Falls, for appellants.

Nelson, Montgomery, Robertson & Sellers, of Wichita Falls, for appellee.

MASSEY, Chief Justice.

From a summary judgment in behalf of a defendant insurance company denying plaintiffs the right of reformation to delete the name of one of them from a liability insurance policy naming both as insured, and further construing the policy to be one which prohibited one of the parties named from invoking the indemnity protection afforded by the policy as applied to damages resulting when the vehicle insured by the policy struck and damaged property of the other of such persons so named as insured, the plaintiffs appeal. Judgment affirmed.

Appellee urges in his brief that there is a defect of the appeal bond as it purports to support the appeal of T. E. Purcell, one of the appellants herein. T. E. Purcell is a minor, and in so far as the conduct of the suit below was concerned was there represented by 'next friend'. No person, as a 'next friend' of such minor executed the appeal bond. T. E. Purcell executed it himself, along with sureties. The language of the bond leaves no doubt but that it was intended to support the appeal of the minor appellant, and the sureties pledged themselves as the law contemplates they should conditioned upon the prosecution of the appeal. Appellee contends his position on the point and motion is supported by the cases of Biggins v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App. 1908, 110 S.W. 561, affirmed in 102 Tex. 417, 118 S.W. 125; Lewis v. Texas & P. Ry. Co., 1907, 47 Tex.Civ.App. 425, 105 S.W. 334; and Reed v. Great American Indemnity Co., Tex.Civ.App., Eastland 1932, 47 S.W.2d 860. All three were cases where affidavits in lieu of bond were given or attempted to be given. Since the appeal as to the minor is necessarily either by him or for him as a principal, and since it is now well settled that the bond does not have to officially bear a principal's signature if it does bear the signatures of the sureties, the bond filed is a valid bond supporting the appeal of the minor, T. E. Purcell. See 3-A Tex.Jur., p. 393, Sec. 311.

The facts of the case are these. In the spring of 1951, an antecedent policy of liability insurance was in effect upon a truck owned by T. E. Purcell, naming as persons insured both such owner and his father P. E. M. Purcell, who is an appellant herein along with his son. This policy had been issued at the instance of the father, unbeknownst to the son. It was alleged that the said father at about that time, and antecedent to the date on which the policy was due to expire by its own terms, notified the local insurance agent for the company to delete his name from the policy as a named insured. The local agent stated that he would make such deletion. Subsequently, about June or July of the same year, 1951 (no such deletion ever having been effected by such agent), the policy expired. The agent, without direct orders from anyone, wrote a new policy (and being the contract at issue in this law suit) by which the same truck was insured, and with relation to which indemnity was prescribed to be afforded to insured persons named therein as T. E. Purcell and P. E. M. Purcell. This policy was delivered to T. E. Purcell, who was the owner of the truck. He accepted and paid for the same. Apparently it was never discovered that anyone's name appeared on the face of the policy as party insured other than the owner, T. E. Purcell, until sometime in November of 1951, when the truck in question, operated by an agent of T. E. Purcell, ran into and damaged some property of P. E. M. Purcell. Upon this occurring, it appears that father and son examined the insurance policy and found the 'insureds' named thereon as indicated. The father made a claim for damages against the son, and the son notified the insurance company. The insurance company appears to have notified both the son and his father that the policy contract was not one which afforded indemnity protection of any kind to the son as related to the claim of the father. The insurance company denied present and future liability to both parties, upon the policy exclusion reading as follows: 'This policy does not apply: * * * (f) under coverage B (property damage liability to limit of $10,000.00 as to each accident), to injury to or destruction of property owned by, rented to, in charge of or transported by the insured.'

It is noted that by the insuring agreement of the policy in question the term 'Insured' was defined as: 'With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *'

The suit was filed by and in behalf of both anmed insureds, the father and son, and one theory under which they advanced the proposition that Exclusion (f) should be construed to have no application affording the appellee a right to deny liability under the policy,-was that since one Joseph Smith, agent of T. E. Purcell, was driving the vehicle at time of the collision, he was the 'insured' as contemplated by the policy under the definition of such, and that it would extend to T. E. Purcell because of Joseph Smith's relation to him as agent for him as a principal at time of the collision, but could not extend to P. E. M. Purcell, whose property was damaged, because the truck insured was neither owned by him, nor rented to him, nor transported by him, nor in his charge at such time. By reason of this, it was contended that even without reformation of the policy, there was no application of the exclusion as regards P. E. M. Purcell's claim for damages as an injured third-party-stranger. The interests of father and son were identical as regards this phase of the appeal, and joint presentation of request for declaration of rights, under the policy as worded, was entirely proper.

Under the situation in this case, as it existed at the time of the institution of the suit, and as of the trial, there was a controversy between the appellee on the one hand-and the appellants, father and son, on the other. A court may enter a declaratory judgment where either a controversy between the parties will be ended by the declaration, or where a useful purpose will be served thereby. While there are conditions and contingencies which may operate even after the entry of a declaratory judgment on the question so that the controversy will not be ended, the declaration of the rights of the parties upon the question, as of the time the suit was tried will certainly serve a useful purpose. It is a justiciable controversy touching upon the legal relations of parties having adverse legal interest upon an actual subsisting legal controversy. Railroad Commission v. Houston Natural Gas Corporation, Tex.Civ.App., Austin, 1945, 186 S.W.2d 117, writ refused, want of merit; and see cases annotated beginning at 142 A.L.R. 25.

Interest as to and upon this question being identical and non-controversial as between father and son, the brief filed on behalf of both, though by the same firm of attorneys that represented only one of them upon trial in the court below, is sufficient filing as to both and is a proper compliance with T. R. C. P. 414 and 422, constituting the filing of briefs in behalf of each of them as an appellant. The contention of appellee that the appeal should be dismissed as to T. E. Purcell, who, it contends, has not come forward on the appeal with a brief separately filed for him, is without merit, as the brief filed for both appellants actually constitutes the prosecution of an appeal by each of them.

The collision in question occurred prior to the effective date of the automobile Safety Responsibility Act in Texas. Vernon's Ann.Civ.St. art. 6701h. The nature of liability automobile insurance may be considered, wholly uncomplicated by such statute and without regard to whether that law has operated to affect the construction of a contract of such character of insurance protection. The contract of insurance in question here was one as to which T. E. Purcell (the son) was entirely free to either enter into or not enter into as regards his truck. He was not under any obligation to make a contract of insurance with the appellee insurance company or any other company. Neither was the company obliged to issue its policy of insurance.

It is undisputed that T. E. Purcell, the son, was the person receiving the contract, and that he was the sole owner of the automobile insured thereunder. Liability insurance is insurance which affords indemnity as to potential claims for damage growing out of the operation and use of the vehicle as to which the insurance is afforded. The person desiring to afford himself such protection can provde by such a contract to protect only himself. He can likewise afford such protection to persons using such a vehicle as his agents or with his permission the automobile in question. The form of the policy in question provides for indemnity protection so extended. He can, and often does, have other persons named as an insured in the policy along with him, which makes-As To Such Other Persons-the contract one wherein indemnity protection is afforded to anyone using the vehicle as the agent of such other persons, or using the vehicle with such other person's consent, when contracted for by the form on which such coverage is provided.

It so happens that the Texas Standard Form of insurance policy as to liability insurance, and as to which the policy in question is an example, provides by its terms that an 'insured' under...