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

• Decision Date: 25 June 1927
• Docket Number: (No. 794-4801.)
• Citation: 296 S.W. 484
• Parties: QUEEN INS. CO. et al. v. GALVESTON, H. & S. A. RY. CO. et al.
• Court: Texas Supreme Court

Page 484

296 S.W. 484

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

(No. 794-4801.)

Commission of Appeals of Texas, Section B.

June 25, 1927.

Error to Court of Civil Appeals of First Supreme Judicial District.

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 was affirmed by the Court of Civil Appeals (290 S. W. 286), and they bring error. Affirmed.

Thompson, Knight, Baker & Harris, Locke, Locke, Stroud & Randolph, and Geo. S. Wright, all of Dallas, for plaintiffs in error.

Boyle, Ezell & Grover, of San Antonio, and Baker, Botts, Parker & Garwood, of Houston, for defendants in error.

SPEER, J.

One N. D. Naman, the owner of 105 bales of cotton upon which plaintiff in error and other insurance companies carried policies of insurance, sued such insurance companies, and also the Galveston, Harrisburg & San Antonio Railway Company and the San Antonio & Aransas Pass Railway Company, carriers of the cotton, to recover damages for the loss of 6 bales and for injuries to the remaining 99 bales through fire while the cars containing the cotton were standing at the unloading wharves or sheds of the compress company, where the cotton was destined for delivery.

There was a trial before the court, who rendered judgment for the plaintiff against the insurance companies, but refused his alternative prayer for judgment against the railway companies. There was a prayer by the insurance companies for judgment over against the railroad companies for such sum as the plaintiff might recover against them, the insurance companies, upon their alleged right of subrogation. The trial court found against this plea over. This judgment was affirmed by the Court of Civil Appeals. 290 S. W. 286. It appears after the judgment was rendered in the trial court the insurance companies made settlement with the plaintiff and took his receipt and transfer of his cause of action against the railroad companies.

The writ of error has been granted to the insurance companies upon the issue of their right to recover over against the railroad companies the amount paid by them to the plaintiff.

There are some 30 or more assignments of error, but all of them are answered by our conclusion with reference to the scope of the pleadings of the insurance companies whereby they sought to recover upon the theory of subrogation.

The right of plaintiffs in error to such recovery in any event must, of course, find support in their pleadings. That portion of their answer in which such support must be found, if at all, is as follows:

"For further and other answer herein, this defendant would show that if plaintiff holds its policy or policies such as described in plaintiff's petition, each said policy so held contained a stipulation and provision, in substance, as follows, to wit:

"`If this company shall claim that the fire was caused by the act or neglect of any person or corporation private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to the rights of recovery by the insured for the loss resulting therefrom, and such rights shall be assigned to this company by the insured on receipt of such payment.'

"This defendant would show that the loss by fire described in plaintiff's petition was due to the act and neglect of the defendant Galveston, Harrisburg & San Antonio Railway Company, and to the act and neglect of the defendant San Antonio & Aransas Pass Railway Company in so far as said loss and damage applied to the 99 bales of cotton described in plaintiff's petition; that said cotton was at the time of said loss in the possession and under the control of the said defendants, and each of them, on behalf of the plaintiff, as aforesaid, and as to said property it owed the duties, obligations and liabilities of a carrier under the Constitution and laws of the state of Texas, and each of them negligently caused and permitted said property to be destroyed, and each of them failed and neglected to perform its duty as a carrier and to deliver said cotton and each part of the same to the plaintiff or his order in good order and condition as when received from him. This defendant would further show that, if it owes to plaintiff any sum for loss or damage as to the 99 bales of cotton sued for in plaintiff's petition, it is entitled to be subrogated to any and all claims of plaintiff against said defendants the Galveston, Harrisburg & San Antonio Railway Company and San Antonio & Aransas Pass Railway Company, and each of them, on payment of the...