Quarles v. Traders & General Ins. Co.

• Decision Date: 03 November 1960
• Docket Number: No. 13618,13618
• Citation: 340 S.W.2d 545
• Parties: James H. QUARLES, Appellant, v. TRADERS AND GENERAL INSURANCE Co. et al., Appellees.
• Court: Texas Court of Appeals

Page 545

340 S.W.2d 545

James H. QUARLES, Appellant, v. TRADERS AND GENERAL INSURANCE Co. et al., Appellees.

No. 13618.

Court of Civil Appeals of Texas, Houston.

Nov. 3, 1960.

Rehearing Denied Dec. 1, 1960.

Conway & Navarro, Walter Conway, Houston, for appellant.

Davis Grant, Austin, for appellee J. B. Cudd, Sr.

Hicks, Dollahon, Boss & Wohlt, Willard I. Boss, Houston, for appellee State Farm Mut. Ins. Co.

Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., Houston, for appellee Traders & General Ins. Co.

BELL, Chief Justice.

This is an appeal from a summary judgment rendered in favor of the appellees.

Appellant filed suit against Traders and General Insurance Company, State Farm Mutual Auto Insurance Company and J. B. Cudd, Sr., seeking to recover damages. As we construe the pleading, appellant alleges that J. B. Cudd, sir. was a passenger in an automobile belonging to R. E. Young that was in collision with an automobile driven by A. L. Morgan on December 12, 1956; that Traders and General carried insurance covering Morgan and State Mutual carried insurance covering Young; that in December, 1956 the two insurers gathered information from Cudd concerning the accident and the appellant Quarles; that this information was turned over to the Harris County Grievance Committee for the purpose and intention of stirring up litigation against Quarles; that the information was false and known to be false. Then appellant alleges that on January 17, 1958, Cudd, for the purpose of assisting the other defendants and the Harris County Grievance Committee in their investigation against appellant, made an affidavit. The alleged false part of the affidavit is:

'* * * About a week or ten days after the accident, a man came by to see me ay my home at 6606 Steubner Airline, in the afternoon. He said his name was Quarles. I remember his name because I asked him if he was any kin to the woman who had killed her kids.'

Appellant says the italicized portion was made by Cudd deliberately and maliciously so appellant would be prejudiced in the trial of the suit filed against him by the Harris County Grievance Committee. The affidavit was used in such suit. It is alleged that prior to giving the affidavit the defendants, and others unknown to appellant, had entered into a conspiracy to attempt to assist the Harris County Grievance Committee to obtain an injunction enjoining appellant from continuing his business or profession. Appellant says the affidavit was made with the full cooperation of the other defendants in this case. Then it is alleged the affidavit was used in the case; that publicity from the suit forced appellant to discontinue his business for eighteen months. Then follow other allegations which we need not notice.

As we construed the appellant's petition, he assumes to assert a cause of action for a conspiracy between appellees to get the Harris County Grievance Committee to obtain an injunction to enjoin appellant from pursuing his business or profession and for libel because information given the Grievance Committee, particularly the above affidavit, was false and was used in the injunction suit that was filed against appellant and which was successfully prosecuted.

Each defendant filed an answer containing special exceptions and a general denial.

The appellees filed a motion for summary judgment, asserting the cause of action was barred by limitation; that the execution of the affidavit of January 17, 1958 and its publication and circulation were privileged; that State Farm and Traders and General did not obtain and had no connection with obtaining any statement or affidavit of Cudd; and that none of the defendants entered into a conspiracy to assist such Grievance Committee in obtaining an injunction against appellant.

Attached to this motion was the affidavit of Phil E. Hammer, formerly Assistant General Counsel of the State Bar of Texas, who assisted in the trial of the injunction suit against appellant. The effect of this affidavit is to show that he alone was responsible for obtaining the affidavit of January 17, 1958 from Mr. Cudd and he obtained it in connection with the preparation of the case pending against appellant. Too, the affidavit of Mr. Cudd supports the affidavit of Mr. Hammer and additionally states that other than this affidavit he had no...