White v. Transit Cas. Co., 14770

• Decision Date: 31 March 1966
• Docket Number: No. 14770,14770
• Citation: 402 S.W.2d 212
• Parties: Etta F. WHITE et vir., Appellants, v. TRANSIT CASUALTY COMPANY, Appellee. . Houston
• Court: Texas Court of Appeals

Page 212

402 S.W.2d 212

Etta F. WHITE et vir., Appellants, v. TRANSIT CASUALTY COMPANY, Appellee.

No. 14770.

Court of Civil Appeals of Texas.

Houston.

March 31, 1966.

Rehearing Denied May 5, 1966.

Schwartz & Lapin, Newton B. Schwartz, Houston, for appellants.

Vincent W. Rehmet, Houston, Barrow, Bland, Rehmet & Singleton, Houston, of counsel, for appellee.

BELL, Chief Justice.

Appellee filed suit against August E. Brode, James Lawrence Carr, Etta F. White and her husband, Golden J. White, seeking a judgment declaring that it was not obligated to defend Brode or Carr in any suit brought by the Whites to recover damages resulting to Mrs. White from personal injuries received by her when a truck belonging to Brode and apparently driven by Carr struck the automobile driven by Mrs. White.

The only suit that has been brought was against Brode. By the time of trial of this case below the statute of limitation had intervened as to Carr. Too, the suit sought a declaration that appellee would have no obligation to pay any part of any judgment that appellants might recover. The basis of the suit was the failure of Carr and Brode, the assureds, to give notice of the accident as required by the policy of public liability insurance issued by appellee.

The court, after trial without jury, rendered judgment favorable to appellee in all respects as prayed for.

It appears that Brode and Carr were brothers-in-law and during October, November and December, 1960, lived together at 1805 Havner Street in Houston. In November, 1960, Brode purchased a truck, making a part payment on the purchase price. He took title in his name. He had had an operation in his back and was unable at the time to operate the truck. He and Carr agreed that Carr would operate the truck. From the revenue derived from its operation, the deferred payments on the purchase price and expenses of operation were to be made and any profit was to be divided equally between them.

Brode obtained a policy of public liability insurance covering the truck. He was named assured. Carr was, under the facts appearing here, an additional, though an unnamed, assured.

On December 7, 1960, the truck, while apparently being driven by Carr, was in collision with the automobile driven by Mrs. White.

Brode denies that he ever knew of the accident until he was sued. Carr is not heard from in the record except through a hearsay statement introduced through the insurer's claim adjuster. It can have no effect on the rights of Brode and the Whites. Neither Brode nor Carr ever gave any notice to appellee. When Brode was served with citation he had it sent to appellee.

On December 30, 1960, the then attorney for the Whites, Mr. Filer, wrote a letter to Brode addressed to 1805 Hauner Rd. in Houston. The name of the street should have been Havner. Brode denies he ever received the letter. He moved from that address the last part of December or the first part of January. A copy of the letter was sent to appellee at its correct address in St. Louis Missouri. It was received by appellee according to the date stamped on it by appellee, on January 6, 1961. The letter stated the attorney had been employed to represent Mrs. White to present her cause of action growing out of the automobile collision occurring 'at or near Harris County, Texas' on December 7, 1960. It also stated a copy of the letter was being sent appellee advising it of the attorney's interest and threatened suit if there was no reply in seven days.

On January 24, 1961, appellee wrote the manager of Kuhn Claim Service in Houston enclosing the copy of the letter from the attorney. Appellee's letter showed as assured 'Harris Independent Truck Association, August E. Brode'. Brode had joined this association and his truck was operated by Carr in doing work obtained for its members by the association. The letter also stated this:

'This office does not seem to have a file concerning this accident and it would be appreciated if you would make an investigation of same and obtain a loss report from our assured and conduct whatever further contacts seem dictated with claimants' attorney following said investigation.

'Please acknowledge receipt and acceptance of this assignment for purposes mentioned herein.

'This office will look forward to receiving a report concerning your investigation, along with your recommendations for bringing this file to an early conclusion.'

Kuhn immediately after receiving the letter of January 24 began to try to locate Brode. He knew nothing of Carr at this point. He went to the Harris County Independent Truck Association and was only able to locate the correct address of Brode. He could learn nothing more of Brode. He went to the address and the house was vacant. The neighbors of whom he inquired could tell him nothing of Brode's whereabouts. He then contacted G.M.A.C., where the truck had been financed, but could get no information. The truck had been repossessed. He went to the Houston Police Department but could get no help as he had no location of the accident. He made no further investigation.

On April 12, 1962, after suit was filed against Brode, Mr. Kuhn and the appellee's attorney went to the V. A. Hospital where Brode had been located. Brode executed a non-waiver agreement. Mr. Brode gave them information that helped locate Mr. Carr. Mr. Kuhn later talked to Mr. Carr. It appears that Mr. Carr had reported the accident to the Department...