Texas Landscape Co. v. Longoria

• Citation: 30 S.W.2d 423
• Decision Date: 28 May 1930
• Docket Number: No. 8424.,8424.
• Parties: TEXAS LANDSCAPE CO. et al. v. LONGORIA et al.
• Court: Court of Appeals of Texas

30 S.W.2d 423

TEXAS LANDSCAPE CO. et al. v. LONGORIA et al.

No. 8424.

Court of Civil Appeals of Texas. San Antonio.

May 28, 1930.

Rehearing Denied July 16, 1930.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Rosaura Longoria and others, minors, against the Texas Landscape Company and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Birkhead, Beckmann & Standard, of San Antonio, for appellants.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellees.

COBBS, J.

Rosaura Longoria, Santiago Longoria, Jr., and Lusila Longoria, all minors, brought suit against Texas Landscape Company seeking damages arising from the death of their father, Santiago Longoria, Sr., who died as the result of injuries received in a collision between an automobile which the said Longoria was driving and an automobile of the Texas Landscape Company, operated by its employee, in the course of its business.

By an amended petition the plaintiffs impleaded, as a defendant in the suit, Employers' Liability Assurance Corporation, Limited, of London, England, alleging against that defendant that it had issued a policy of insurance to the defendant landscape company covering the automobile involved in the collision and that under said policy said assurance corporation contracted and agreed to pay and satisfy all judgments rendered against the Texas Landscape Company because of injuries or death inflicted by said automobile truck up to $10,000 for any one person, or $20,000 for two or more persons injured in any one accident. It was alleged that each of said plaintiffs were damaged to the extent of $5,000, and judgment was prayed for against both the defendants for plaintiffs' damages.

Defendant assurance corporation filed its plea in abatement to the suit, alleging that it was not a proper or necessary party to the suit; that the suit was prematurely brought; that plaintiffs' petition constituted a misjoinder of causes of action for tort and on contract; and finally that any reference to the alleged policy of insurance mentioned in plaintiffs' petition was prejudicial to the rights of the assurance corporation.

The defendant landscape company filed a plea of misjoinder, adopting the plea of the assurance corporation, and later filed an amended plea in abatement and of misjoinder, pleading that the insurer was not a proper or necessary party, that the suit against the assurance corporation was prematurely brought, and that plaintiffs' petition constituted a misjoinder of causes of action for tort against the defendant landscape company, with a cause on a contract against the defendant insurer, and that the mention of insurance in the suit was highly prejudicial to the rights of defendant landscape company.

The court overruled the pleas of both defendants.

Plaintiffs filed their second amended original petition, bringing in, as an additional plaintiff, one more minor, 19 years of age, Santiago Longoria, also alleged to be the son of deceased, who sued through his next friend and sister, Celia, for his damages, $500. The minor plaintiffs Rosaura Longoria, Santiago Longoria, Jr., and Lusila Longoria, sued through their next friends, T. B. Miranda and wife, uncle and aunt of said plaintiffs. It was alleged that they were of tender age, to wit: Rosaura, 7, Santiago, Jr., 4, and Lusila, 3, and that Rosaura had been damaged $4,500, and the other two $5,000 each.

The plaintiffs alleged, as in the earlier petitions, that the father of plaintiffs had died from injuries resulting from a collision between his truck and an automobile operated by an employee of the defendant landscape company, and it was alleged that said collision occurred on December 31, 1928, and that the defendant landscape company was negligent in that it operated its truck at an excessive and negligent rate of speed, that said truck was a commercial motor vehicle and weighed in excess of 2,000 pounds, and that it had been unlawfully operated at a speed in excess of 18 miles an hour. That said employee failed to keep a reasonably careful lookout, failed to give a timely warning and failed to keep said automobile under control and negligently caused said automobile to collide with the automobile in which deceased was riding.

As against the assurance corporation, plaintiffs alleged that it had issued a policy of insurance to defendant landscape company for the benefit of it and all persons killed or injured by the insured truck, and that under the policy said corporation was obligated to pay the injured persons or beneficiaries of killed persons, damages for personal injuries and death inflicted by said automobile truck operated by the landscape company; that under said policy of insurance the assurance corporation had contracted and agreed to pay and satisfy all judgments rendered against the landscape company because of such injuries or death up to $10,000 for one person or $20,000 for two or more persons injured in any one accident, and that the policy covered the injuries inflicted upon the deceased father of plaintiffs; that said policy obligated the assurance corporation to defend all such suits brought against the landscape company, and that the assurance corporation was defending this suit for the landscape company; that the policy was in full force and effect, and that notice of the accident, claim, and said suit had been given. The plaintiffs sought damages against the landscape company for $15,000 and against the assurance corporation for $10,000.

Each of the defendants renewed and filed its plea in abatement, and they were again overruled.

For answer to the merits, each defendant pleaded general denial and specially denied that the deceased had an earning capacity of $100 a month, as alleged by plaintiffs, and that the deceased had supported his minor children. Each defendant also pleaded that the accident resulting in Longoria's death was due to contributory negligence of the deceased; that the accident happened at the intersection of Olmos drive and Shook avenue, near San Antonio; that deceased was driving south on Shook, and that landscape company's employee was driving east on Olmos; that the accident occurred in the intersection; that deceased was driving his truck at an excessive and negligent rate of speed, and that deceased was driving his automobile on the left side of the street; that deceased did not have his truck under control and failed to slow down to a reasonable speed in view of the presence of the intersection; that deceased failed to sound a warning signal and failed to keep a reasonably careful lookout prior to entering the intersection and at the time thereof; that deceased approached the intersection from the north and the employee of landscape company approached the same from the west, and that the position of the two automobiles involved was such that the automobile of the landscape company was to the right of the automobile of Longoria, and that under the laws of Texas the employee of the defendant landscape company had the right of way and that deceased negligently failed and refused to yield the same.

The cause was tried to a jury upon special issues, and upon the answers of the jury the court awarded judgment against defendants, jointly and severally, in behalf of Lusila Longoria, $2,500, to Santiago Longoria, Jr., $2,500, to Rosaura Longoria, $2,500, and to Santiago L. Longoria, the 19 year old minor son, $10, together with interest and costs. Both defendants have appealed.

Appellants have filed a brief containing 232 pages, and containing 94 assignments and 45 propositions. The brief of appellee contains 77 pages.

It can be readily assumed that we have put in much time and labor in considering these two papers, in reading the same and examining the many authorities cited, and, after so doing, we have reached the conclusion that at last the facts are simple and present but few legal questions.

We shall not undertake to set out and discuss the numerous assignments and propositions of law, because we think but few assignments of error control this case.

Appellants have at length, page after page, discussed their pleas and insisted upon them. While the brief is strong and well presented, we cannot agree with appellants. In the first place we have not been able to find any merit in the main contention, that it was error to join in and sue the assurance corporation.

It appears from the terms of the insurance policy that it was written for the benefit of injured persons as well as the assured; therefore there can be no reason why the assurance corporation should not be made a party to this suit. In the case of Engler v. Hatton (Tex. Com. App.) 12 S.W.(2d) 990, it is held that a judgment against the assured should not be reversed even though the insurance company was improperly made a defendant in the trial of the case.

In passing upon such questions, as contended by appellee, our courts have largely been controlled by whether the insurance policy was one that merely provided indemnity against loss or whether it was a liability policy guaranteeing that the insurance company would assume and pay all liability of the assured, regardless of whether the assured was forced to pay or suffer any actual loss. This policy obligates itself "to pay and satisfy judgments rendered against the assured in legal proceedings defended by the Corporation and to...