Security Mut. Cas. Co. v. Johnson
| Decision Date | 07 December 1978 |
| Docket Number | No. 5873,5873 |
| Citation | 575 S.W.2d 107 |
| Parties | SECURITY MUTUAL CASUALTY COMPANY, Appellant, v. Herman G. JOHNSON et al., Appellees. |
| Court | Texas Court of Appeals |
This is a suit by plaintiffs Herman G. Johnson and Timothy Johnson against defendant Insurance Company for $2,131. plus interest and costs. Timothy Johnson was operating a pickup truck owned by W. H. McColm when he collided with a lamp pole causing $2,131. damage to the vehicle. McColm filed suit against Timothy Johnson, alleging Johnson was operating the vehicle without his permission, and recovered judgment of $2,131. Herman Johnson had a policy of liability insurance issued by defendant. Defendant refused to defend Timothy Johnson in the suit brought by McColm or to pay the judgment resulting therefrom.
Herman Johnson and Timothy Johnson then filed this suit against defendant Insurance Company to recover the amount of the judgment rendered in favor of McColm plus attorney's fees.
Trial was to a jury which found:
1) Eugene George was a permittee of W. H. McColm, owner of the vehicle.
2) Timothy Johnson was a permittee of Eugene George.
3) The vehicle was covered by the insurance policy.
The trial court rendered judgment for plaintiffs against defendant for $2,131.
Defendant appeals on 16 points which we summarize as 5 main contentions.
1) As a matter of law Timothy Johnson was not a person "insured" under the policy.
2) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 1 that Eugene George was a permittee of the owner of the vehicle W. H. McColm, and such finding is against the great weight and preponderance of the evidence.
3) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 2 that Timothy Johnson was operating the vehicle with permission of Eugene George, and such finding is against the great weight and preponderance of the evidence.
4) Under the policy coverage was excluded by exclusion (i) of Part I Liability, because the undisputed evidence shows Timothy Johnson had the care, custody and control of the pickup at the time of the accident.
5) Defendant had no duty to defend or pay any judgment rendered against Timothy Johnson because the only pleading forwarded to defendant showed on its face there was no coverage under the policy.
Contention 1 asserts Timothy Johnson was not a person "insured" under the policy.
The policy provides: "Persons Insured". The following are insureds under Part I .
Thus to be a person insured under the policy Timothy Johnson had to be a named insured, or a "relative" of the named insured and a resident of the same household. Herman Johnson is the named insured. It is established Timothy Johnson is 18 years of age; is the son of Herman Johnson; that after the accident Timothy was taken to the hospital, but that his father came and got him and took him home. We believe that a fair inference from the foregoing is that Timothy lives in the same household with his father, the insured. There is no evidence that Timothy was not a resident of his father's household.
Contentions 2 and 3 assert there is no evidence and/or insufficient evidence to support the jury's answers to Issues 1 and 2.
Issue 1 found Eugene George was a permittee of W. H. McColm, the owner of the vehicle. Eugene George drove the pickup home from his work every night. Eugene George was furnished the pickup for his business and personal use by his employer. Eugene George kept the pickup at his home over weekends. We think the evidence ample to support the jury's answer to Issue 1, and that such finding is not against the great weight and preponderance of the evidence.
Issue 2 found Timothy Johnson was a permittee of Eugene George. Timothy Johnson was a friend of Eugene George and his brother Paul George. Eugene permitted Paul and Timothy to use the pickup; they used the pickup 50% Of the time with Timothy's car; Timothy reasonably believed that the pickup belonged to Eugene; on the occasion of the wreck Timothy was asked to take Eugene's and Paul's cousin home in his car; he would have done so but discovered he was low on gas; so Timothy and Paul took Paul's cousin home in the pickup; Eugene gave Timothy permission to use the pickup. We think the evidence ample to support the jury's answer to Issue 2, and that such finding is not against the great weight and preponderance of the...
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Security Mut. Cas. Co. v. Johnson
...Trial was to a jury and judgment was rendered for the Johnsons. The court of civil appeals affirmed the judgment of the trial court. 575 S.W.2d 107. We reverse the judgments of the courts below and render judgment that plaintiffs take nothing. Eugene George was employed by W. H. McColm and ......