Traders & General Ins. Co. v. Davis, 5619.

Citation142 S.W.2d 826
Decision Date09 July 1940
Docket NumberNo. 5619.,5619.
PartiesTRADERS & GENERAL INS. CO. v. DAVIS et al.
CourtCourt of Appeals of Texas

Appeal from District Court, Gregg County; C. E. McGaw, Judge.

Suit by W. M. Davis, acting as administrator of estate of J. M. McIlveene, deceased, against the Traders & General Insurance Company upon judgment against C. A. Jones, who was allegedly covered by automobile liability policy issued by defendant, wherein Mrs. J. M. McIlveene, as temporary administratrix of the estate of J. M. McIlveene, deceased, and C. A. Jones intervened. From judgment for plaintiff, the defendant appeals.

Affirmed.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Stinchcomb, Kenley & Sharp, of Longview, for appellant.

Jones & Jones, of Marshall, for appellee.

HALL, Justice.

W. M. Davis, acting as administrator of the estate of J. M. McIlveene, instituted this suit to recover the sum of $6,000 alleged to be owing the estate of McIlveene by appellant. Exception by appellant to Davis' authority to prosecute this suit being by the court sustained, Mrs. J. M. McIlveene, wife of J. M. McIlveene, deceased, was permitted to intervene as administratrix in the place of Davis, and she will be referred to hereafter as appellee. It was alleged by appellee that prior to March 31, 1934, appellant issued to one C. A. Jones its public liability policy of insurance whereby "it insured and indemnified him in such a way that it would become indebted and liable to persons who were injured by reason of his (Jones') negligent or careless operation of his automobile, and agreed and became liable to pay off and satisfy such judgments as might be rendered against him (Jones) for injuries or death inflicted and caused by the operation of his automobile;" that on March 31, 1934, and while said policy was in force, C. A. Jones negligently inflicted serious and permanent injuries to J. M. McIlveene by driving his automobile against him. Appellee alleged further that appellant received prompt notice of said injury, made an investigation thereof, and after suit was filed by McIlveene against Jones for damages resulting from his injuries, appellant took charge of the defense of said suit with attorneys employed and furnished by it; that the trial of the case between McIlveene and Jones resulted in judgment for McIlveene for $4,000; that appellant furnished the appeal bond and prosecuted an appeal of that cause to the court of civil appeals and to the Supreme Court, which resulted in an affirmance of same. That judgment became final on June 30, 1937. It was alleged further that after the rendition of the judgment against Jones, McIlveene died, leaving a widow and several children; that an execution had been issued against C. A. Jones to satisfy that judgment and had been returned unsatisfied on account of Jones owning no property subject to execution; and that C. A. Jones was insolvent. "That by reason of said contract of insurance made with C. A. Jones by appellant and under the said insurance policy, appellant became indebted to the said J. M. McIlveene, and upon his death to his estate, in the sum of $4,000 with interest at 6% per annum from the 29th day of June, 1935. * * * that all the requirements, exceptions, regulations and conditions in the said policy contained were fully complied with and there has been no breach of same that has the effect of creating or giving to defendants a defense to any part of this cause of action. All, if any breaches or defenses that would have relieved defendant from liability to plaintiff under said policy, have been waived by it;" and that having taken charge of the defense of the suit of McIlveene v. Jones and participated therein throughout the trial, is estopped to urge said defense in this suit. Appellee alleged, in the alternative, being unable to collect said judgment from Jones, that under the law he is authorized to prosecute this suit against appellant for the amount of that judgment, together with the legal interest thereon from the date of its rendition.

Appellant answered by general demurrer, and numerous special exceptions, all of which were overruled, and a general denial. It averred that Mrs. J. M. McIlveene as temporary administratrix of the estate of J. M. McIlveene, deceased, was without authority to prosecute this suit or intervene therein. Answering specially appellant alleged: (1) That the policy of insurance issued by it to C. A. Jones was one of indemnity and not public liability, that this suit is not by Jones, nor has Jones paid or discharged the judgment against him in favor of appellee, neither has he transferred to appellee any of his (Jones') rights in said insurance policy (this was accomplished later by the act of Jones in transferring and assigning to Mrs. McIlveene, temporary administratrix, for a valuable consideration, the insurance policy and all rights and claims therein owned and held by him). (2) That C. A. Jones was a necessary party to this suit (this was later complied with by Jones' intervening and adopting in the main appellee's pleadings). (3) That C. A. Jones is not insolvent and no liability exists against appellant until Jones has discharged appellee's judgment against him in whole or in part or is shown to be wholly insolvent. (4) That the defense it made in the case of McIlveene v. Jones "was made under a written `non-waiver agreement' between this defendant and the said C. A. Jones, whereby this defendant in no wise recognized any liability on or against it in said suit, but specifically reserved all its defenses as against the said C. A. Jones and the said J. M. McIlveene under said policy of insurance". (5) That C. A. Jones breached each and all of said terms of said insurance contract in that he (a) failed to give proper notice to it of the accident to McIlveene; (b) that he failed to properly cooperate in the defense of the suit of McIlveene v. Jones; (c) that he "failed to fully testify and develop all of the true facts concerning such accident in the trial of said cause;" and (d) that he withheld material facts from appellant in the McIlveene case. (6) That appellee is barred by the one, two, and four years statutes of limitation. And (7) that J. M. McIlveene had no cause of action against C. A. Jones in the case in which McIlveene secured a judgment against Jones for his (McIlveene's) injuries.

C. A. Jones was permitted to intervene and he adopted all the allegations in appellee's second amended petition, except that alleging his insolvency. By trial amendment appellant attacked the transfer from C. A. Jones to Mrs. J. M. McIlveene, administratrix, of the policy of insurance sued on herein and his rights and claims thereunder and especially the claim involved in this suit. This transfer was attacked as being void, of no force and effect, and in conflict with the provisions of the policy.

Trial was to a jury on special issues in answer to which the jury found: (1) That at the time and place J. M. McIlveene was injured the car was not being operated by C. A. Jones for the purpose of committing a felony; and (2) that the intervenor, C. A. Jones, did not fail to properly cooperate with the defendant, Traders & General Insurance Company, in the defense of the suit of J. M. McIlveene v. C. A. Jones. Other issues were submitted to the jury making inquiry as to the intoxication of Jones at the time he injured McIlveene, and also with respect to the insolvency of Jones. These issues were not answered by the jury. Upon the issues answered by the jury the trial court entered judgment for appellee for the amount of the Jones judgment with interest thereon at 6% from the date of its rendition, and costs.

Appellant's first proposition asserts that the judgment herein is a nullity for the reason that there was no plaintiff in the case and no authority vested in any one to act as plaintiff. As stated in the beginning, Davis, styled as administrator, instituted this suit. His authority to act as such was questioned by appellant, and the court below dismissed him from this case, holding that he had no authority to institute same. While the court below was considering Davis' authority, Mrs. McIlveene and her children were permitted to intervene, and they did intervene, adopting the pleading theretofore filed in this cause by Davis. On the same day Mrs. McIlveene made application for, was appointed and qualified as temporary administratrix of the estate of J. M. McIlveene, deceased, with specific authority to prosecute this suit. On the same date appellant pleaded surprise, was permitted to withdraw its announcement of ready, and the court continued the cause for the term. At a succeeding term Mrs. McIlveene filed other pleadings upon which the case was tried.

It appears from the record that Davis, upon the death of McIlveene, which occurred while the McIlveene v. Jones case was pending on appeal in the court of civil appeals, was appointed temporary administrator to represent the estate on appeal. After that case had been affirmed by the court of civil appeals and writ of error dismissed by the Supreme Court, Davis' authority to act ceased. The trial court properly dismissed him from this case and permitted Mrs. McIlveene, wife of the deceased and mother of their children, to act in such capacity as temporary administratrix with authority to prosecute this suit. Hall v. Davison, Tex.Civ.App., 176 S.W. 642, writ refused. In her plea of intervention Mrs. McIlveene alleged specifically her authority to intervene in this suit and that Davis was without authority to prosecute same in the capacity of administrator of McIlveene's estate. Moreover, the action of the county court appointing Mrs. McIlveene temporary administratrix and the action of the district court in permitting her to intervene in this cause were brought about by the motion of appellant challenging Davis' authority to institute and...

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3 cases
  • Seguros Tepeyac, SA, Compania Mexicana v. Bostrom
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    ...Standard Ins. v. Ebner, 1950, 149 Tex. 28, 228 S.W.2d 507 (claim for less than the policy maximum); Traders & General Ins. Co. v. Davis, Tex. Civ.App.1940, 142 S.W.2d 826; Employers Casualty Co. v. Hicks Rubber Co., Tex.Civ.App.1942, 160 S.W.2d 96. Many cases discussed by the parties and th......
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    ...prosecute the suit. LeSage v. Smith, 145 S.W.2d 308, 313 (Tex.Civ.App. Fort Worth 1940, writ dism'd judgmt. cor.); Traders & General Ins. Co. v. Davis, 142 S.W.2d 826, 829 (Tex.Civ.App. Texarkana 1940, writ dism'd judgmt. cor.). Thus Austin will not be heard to assert on this appeal that th......
  • Bartholomew v. Glens Falls Ins. Group
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    ...assets, when converted into money without unreasonable haste or sacrifice are insufficient to pay his debts." Traders & General Ins. Co. v. Davis, Tex.Civ.App., 142 S.W.2d 826, citing 32 C.J. Usual legally defined 'insolvency * * * is an inability of the debtor to pay his debts as they fall......

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