Ray v. Moxon
| Decision Date | 04 January 1933 |
| Docket Number | No. 3937.,3937. |
| Citation | 56 S.W.2d 469 |
| Parties | RAY et al. v. MOXON et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.
Thomas & McDonald, of Big Spring, for defendants in error.
For convenience the parties to this appeal will carry the same designation as in the trial court.
Plaintiff Le Roy Moxon, by next friend, brought suit against E. E. Ray and the Commercial Standard Insurance Company, defendants, for damages. The substance of his cause of action against Ray was that said Ray had negligently struck the motorcycle on which he was riding on the Bankhead Highway near the town of Big Spring, with his automobile, inflicting physical injuries not necessary here to set out.
For cause of action against the other defendant herein, plaintiff alleged: "That defendant, Commercial Standard Insurance Company, hereinafter referred to as the Insurance Company, had at the time of said injury, an insurance policy issued to E. E. Ray, the other defendant herein, such policy being then and there in force, the main purpose of which was in substance the providing of public liability insurance binding the said Insurance Company to pay any and all damages sustained by any third party because of and through the negligence of the defendant E. E. Ray, and because of the policy and by reason of the terms thereof, the said defendant Insurance Company has, under the facts and circumstances hereinbefore set out, become liable jointly with the defendant E. E. Ray unto the plaintiff herein for the payment of any and all of the damages hereinbefore set out, such policy of insurance being written not only for the benefit of the said defendant E. E. Ray, but for the benefit of such third parties as might become injured through the negligence of the defendant E. E. Ray, and the plaintiff having been injured by and through the negligence of the defendant, comes within the terms, stipulations and benefits of the said public liability insurance policy then and there existing, issued and delivered by the said Commercial Standard Insurance Company and such judgment as may be herein rendered against said E. E. Ray, should also, under the terms of said policy, be entered and adjudged over and against the said Insurance Company, jointly and severally."
Judgment was rendered for plaintiff against defendants in response to special issues.
Both defendants filed pleas in abatement, alleging a misjoinder of parties and causes of action. This was overruled, after which, and subject to the above pleas, the defendants filed answer on the merits, the nature of which will sufficiently hereinafter appear in the discussion of the law questions.
Under appropriate assignments of error both defendants here contend, and we think correctly so, that the court erred in overruling their respective pleas in abatement.
The general rule is that causes of action ex delicto and ex contractu may not be joined in the same suit unless they have arisen out of the same transaction or relate to the same subject-matter and are dependent mainly upon the same evidence. 1 Tex. Jur. § 42, and authorities there collated.
The real question presented is whether or not the contract evidenced by the policy issued to the insured may be construed to give a direct right of action against the insurer by the injured party, or, stated otherwise, whether or not such a policy creates primary liability against the defendant insurance company. Manifestly a negative answer to this places this case within the general rule above stated.
Confusion exists among the authorities regarding this matter, and its importance has caused us to make a careful examination of existing precedents in an effort to arrive at the correct rule.
The policy in question provides, in part, that the aforesaid insurance company:
The last clause above quoted has come to be known in judicial parlance as a "no action clause," and will be frequently referred to in this opinion.
As supporting his contention that this policy gives a direct right of action against the insurer and creates primary liability, plaintiff cites, among others, the following authorities: Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423, 425; American Automobile Insurance Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534; American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662.
In the Longoria Case, supra, the terms of the policy are not set out, their substance and legal effect only being stated. Among these we note the following: ...
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