Torres v. Ohio Cas. Ins. Co., 3398

• Decision Date: 15 November 1956
• Docket Number: No. 3398,3398
• Citation: 296 S.W.2d 561
• Parties: Alice TORRES et vir, Appellants, v. The OHIO CASUALTY INSURANCE CO., Appellee.
• Court: Texas Court of Appeals

Page 561

296 S.W.2d 561

Alice TORRES et vir, Appellants, v. The OHIO CASUALTY INSURANCE CO., Appellee.

No. 3398.

Court of Civil Appeals of Texas, Waco.

Nov. 15, 1956.

Rehearing Denied Dec. 13, 1956.

Johnson, Guthrie & Stanfield, Dallas, Barnes & Barnes, Terrell, for appellants.

L. W. Anderson, Dallas, for appellee.

McDONALD, Chief Justice.

This is a summary judgment case. Parties will be referred to as in the trial court. Plaintiff Alice Torres brought the suit against defendant Insurance Company on a property damage automobile insurance policy issued and thereafter renewed to William E. Rush, Jr. The trial court rendered a summary judgment that plaintiff take nothing.

A statement is necessary. Plaintiff's pleadings and the record herein reflect that plaintiff Alice Torres and William E. Rush, Jr., were formerly husband and wife. They owned as community property a 1950 Chevrolet sedan upon which defendant Insurance Company, through its local agent, J. O. Livingston, issued a liability policy for the period 5 May 1952 to 5 May 1953, such policy being payable to the husband, William E. Rush, Jr. At the time of issuing such policy agent Livingston agreed to keep the car insured. On 10 April 1953, plaintiff and William E. Rush, Jr., were divorced, such divorce decree awarding the 1950 Chevrolet to plaintiff. On 5 May 1953, at the expiration of the foregoing policy, J. O. Livingston, defendant's agent, pursuant to his agreement, renewed the policy for one year, such renewal being in the name of William E. Rush, Jr., as was the previous policy. At the time of issuance of the original policy agent Livingston knew the car was community property, and at the time of the renewal agent Livingston knew that plaintiff was divorced from Rush and knew that she was operating the car. On 3 June 1953, plaintiff, while operating the car, ran into the house of C. B. Anderson and caused damage thereto in the amount of $2,738. Plaintiff sent her sister to notify agent Livingston of the collision, she being in the hospital. Agent Livingston advised that the insurance was in effect, had been renewed, that he had paid the premium on same to the defendant Insurance Company, and had extended credit to plaintiff for payment of her premium; that the policy was in force and that defendant Insurance Company would pay the loss under the policy. Thereafter defendant Insurance Company denied liability under the policy and attempted to cancel same retroactive to its date of issuance. Thereafter Anderson sued plaintiff herein; the defendant Insurance Company refused to defend the suit; and Anderson recovered a default judgment against plaintiff for $2,738. Plaintiff alleged alternatively that she was using the car with the knowledge and permission of William E. Rush, Jr., and asked for judgment against defendant Insurance Company for the amount of the judgment Anderson had taken against her.

The defendant Insurance Company 1) filed a general denial to plaintiff's pleading; 2) plead that William E. Rush, to whom the policy was issued, was not the owner of the car at the time the policy was issued; 3) plead that Anderson, after getting the judgment against defendant herein, had brought suit against it for the amount of such judgment, alleging its failure to defend and indemnify under the terms of the William E. Rush policy. Defendant plead that this suit had resulted in a dismissal with prejudice, and was res adjudicata of plaintiff's present suit; 4) plead that plaintiff had not paid the Anderson judgment and hence had suffered no loss; 5) plead that plaintiff had not paid the premium for the policy and that the policy had never been delivered.

Defendant Insurance Company thereafter set up the foregoing by way of sworn motion for a summary judgment that plaintiff take nothing, and plaintiff filed a sworn reply to defendant's motion for summary judgment.

The trial court granted defendant's motion for summary judgment, decreeing that plaintiff take nothing by her suit and finding that the record showed an absence of a genuine issue as to any material fact. Plaintiff appeals to this court, contending that the record does show the existence of issuable facts and that summary judgment that she take nothing was erroneously entered.

Rule 166-A, Texas Rules of Civil Procedure, provides that the Trial Court can render summary judgment on the record in a case if 'there is no genuine issue as to any material fact.'

Our Supreme Court, in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931, in discussing this rule, says:

'The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weight the evidence or determine its credibility, * * * The underlying purpose of the Rule * * * was elimination of patently unmeritorious claims or untenable defenses; not being intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. 'The burden of proving that there is no genuine issue of any material fact is upon the movant,' and 'all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment * * * (The court) accepts as true all evidence of the party opposing the motion which tends to support such party's contention, and gives him the benefit of...