Queen Ins. Co. v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 24 November 1926
• Docket Number: (No. 8370.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 290 S.W. 286
• Parties: QUEEN INS. CO. et al. v. GALVESTON, H. & S. A. RY. CO. et al.
• Court: Texas Court of Appeals

290 S.W. 286

QUEEN INS. CO. et al. v. GALVESTON, H. & S. A. RY. CO. et al.

(No. 8370.)^*

Court of Civil Appeals of Texas. Galveston.

November 24, 1926.

Rehearing Denied January 20, 1927.

Error from District Court, Harris County; W. E. Monteith, Judge.

Action by N. D. Naman against the Queen Insurance Company and others, with an alternative plea against the Galveston, Harrisburg & San Antonio Railway Company and another. Judgment for plaintiff against the Insurance Companies and they bring error, claiming that the railroads were liable. Affirmed.

Thompson, Knight, Baker & Harris, Locke & Locke, George S. Wright, and Paul M. O'Day, all of Dallas, for plaintiffs in error.

Boyle, Ezell & Grover, of San Antonio, and Baker, Botts, Parker & Garwood and C. J. Landram, all of Houston, for defendant in error San Antonio & A. P. Ry. Co.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for defendant in error Galveston, H. & S. A. Ry. Co.

GRAVES, J.

N. D. Naman, owner of 105 bales of cotton upon which the appealing insurance companies had issued their several policies of fire insurance, suffered $9,447.06 damage thereto by fire about 8 or 8:30 o'clock on the night of June 23, 1920, 6 of the bales being at the time in the standard press warehouse of the Merchants' Compress Company in Houston and being burnt up; the other 99 bales being in two freight cars standing at the company's unloading wharves, or sheds, on its private industrial switch track at such standard press, and being only partially destroyed.

At Naman's suit against the insurance companies on these policies with an alternative plea against the defendant in error railway companies — the Galveston H. & San Antonio and the Aransas Pass — for the damage to the 99 bales on the allegation that they had failed to consummate before the fire a contract for the shipment and delivery of this much of the cotton to him at such standard press, the court, sitting without a jury's aid, refused his alternative petition against the railway companies and gave him a recovery against the insurance companies on the policies for his total damage, at the same time denying the reciprocal claims of the insurance and railway companies against each other.

In this court the controversy is simply one between all the insurance companies in banc on the one hand and the two railroads in like array on the other as to which group should stand the loss from the fire, Naman having passed out of it with the judgment below.

The insurers, asserting no other rights than through subrogation under Naman, contend they are exempt solely because the railroads failed to complete their contract of carriage of the 99 bales with Naman prior to the fire, and that on two accounts they are entitled to take advantage of that fact, in that connection making these recitations in their brief:

"As the matter now stands in this court, the insurance companies have admitted liability to Naman, have paid his claim in full, and by contract as well as by operation of law have become subrogated to all of his claims against the defendant railways arising from their failure to complete the contract of carriage.

"In the meantime they have paid Naman's claim in full, and have received from Naman an assignment of his claim against the carriers."

The opposing litigants challenge both statements in so far as they relate to the claimed payment and assignment as being without support in the record, and examination discloses that they are, there being no pleading or proof as to either; what appears is that the insurers denied liability to Naman on the policies at the trial, and judgment thereon in his favor went against them nolens volens; having claimed no rights as such purchasers or assignees there, they cannot assert them here upon a payment and assignment that may have been made subsequent to the judgment appealed from, this court being bound by the state of the record as it comes to it.

So that the asserted subrogation is solely referable to the claimed failure of the railways to complete delivery of the 99 bales to Naman before the fire; if there was no such failure, then the coveted right did not arise; if there was, it might have, unless defeated by noncompliance on the insurers' part with some indispensable condition precedent.

We think it conclusively appears from the record that neither of these suggested essentials was met. In the first place, the trial court, in very full conclusions of both fact and law, found that there had been a delivery of the two cars containing the 99 bales by the railroads to Naman, or to the standard press of the Merchants' Compress Company, his agent for the purpose, for him, prior to the fire, and after most careful...