Wichita City Lines v. Puckett

• Decision Date: 17 February 1956
• Docket Number: No. 15689,15689
• Citation: 288 S.W.2d 122
• Parties: WICHITA CITY LINES, Inc., Appellant, v. Ray PUCKETT et al., Appellees.
• Court: Texas Court of Appeals

Page 122

288 S.W.2d 122

WICHITA CITY LINES, Inc., Appellant, v. Ray PUCKETT et al., Appellees.

No. 15689.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 17, 1956.

Rehearing Denied March 30, 1956.

Lloyd E. Boas, St. Louis, Mo., Jones, Parish & Fillmore, McDonald & Anderson and Geo. W. Anderson, Wichita Falls, Looney, Clark & Moorehead, Everett L. Looney and R. Dean Moorhead, Austin, for appellant.

William A. Rembert, Jr., Dallas, Bullington, Humphrey, Humphrey & Fillmore, and Lee Humphrey, Wichita Falls, for appellees.

MASSEY, Chief Justice.

From a judgment for the plaintiff landlord in a suit for damages because of loss resulting from fire caused through the negligence of his tenant, the defendant, the tenant appealed.

Judgment affirmed.

Ray Puckett owned a building in the City of Wichita Falls, Texas. He contracted with and leased this building to the Wichita City Lines, Inc., a bus transportation company. Paragraph 4 of the lease read as follows: 'Lessor agrees to carry his own insurance against loss by fire, etc. on the entire building.' By other paragraphs of the lease Puckett, as lessor, agreed that in the event of fire, etc., causing damage to the building he would restore the building by repairing it if such could be done through repairs, whereupon the lease would continue subject to a deduction of rent during the period in which the building was not usable. It was also provided in the event of fire that should lessor Puckett deem the building unfit for occupancy, or should he decide against repair, choosing instead to remodel or rebuild, he would be entitled to terminate the lease.

Puckett secured fire insurance on the building and contents belonging to him. Two companies carried the risk of such insurance. They were the Millers Mutual Fire Insurance Company of Texas, and Firemen's Insurance Company, a corporation.

On date of March 17, 1952, at about 1:15 o'clock in the morning, the building in question was extensively damaged by fire. As result thereof Puckett was paid the sum of $31,983.73 by the Millers Mutual Fire Insurance Company and $2,645.67 by the Firemen's Insurance Company. This made a total amount of $34,629.40 in insurance benefits paid to Puckett because of loss and damage caused to his building and personal property by fire, under the insurance contracts he had with these two Insurance Companies.

The Companies, upon making payment for the loss and damage to Puckett, became subrogated under principles of equity to any right of action theretofore existing in Puckett against any third person responsible for such loss and damage. 39 Tex.Jur., p. 777, 'Subrogation', sec. 20, 'Insurers'. Furthermore, Puckett assigned such right of action to these Companies as part and parcel of his contracts of settlement with them. 5 Tex.Jur., p. 18, 'Assignments', sec. 16, 'Claims Arising out of Torts.-In General'. Further, irrespective of any necessity therefor, Puckett expressly conferred upon said Companies the right and power to file and prosecute a damage suit in his name against third parties responsible in tort for the loss and damage to his building and his personal property.

Thereafter these Companies brought suit in Puckett's name against the Wichita City Lines, Inc., Albert T. Ferguson, its employee, and The Texas Company, alleging that the loss and damage by fire sustained by Puckett was the result of the defendants' negligence. There was one trial which resulted in a mistrial. Thereafter Ferguson was dropped as a party defendant. There is some question as to whether The Texas Company was properly retained as a defendant for purposes of the second trial, and some question about whether it is before us on this appeal. However, in view of our disposition the question is immaterial and will not be discussed. We are of the opinion that the case may be considered as one wherein the Insurance Companies, proceeding in the name of Puckett, are the plaintiffs and the Wichita City Lines, Inc., is the defendant. We are further of the opinion that the issues involved would be more simply considered as between Puckett and the Wichita City Lines, Inc., and hereafter when we term the parties as plaintiff and defendant we mean in the first instance Puckett and his original cause of action, and in the second instance the Wichita City Lines, Inc.

Elaborating upon our reasons for so considering the subrogation and assignment questions, it is noted that the record clearly reflects that at all material times the defendant knew of the subrogations and assignments which were made and contracted between Puckett and the Insurance Companies, was informed as to just what part of Puckett's original cause of action against it had been subrogated and/or assigned to said Companies, etc., before there had ever been any settlement of any kind entered into between the defendant and Puckett. Therefore, since the judgment entered was in favor of the two Companies, rather than in favor of Puckett, and exactly in the amount as to each Company as the settlement paid by each to Puckett, defendant is not in position to claim any prejudice for it is of no concern to the defendant who shall receive the damages to be paid in settlement of its liability so long as it is not thereafter exposed to any further claim upon the original cause of action. With the knowledge defendant had of the ownership of the cause of action he could not, of course, claim to have settled any part of it with a person known to have parted with the title to it. The Companies do not contend that they should recover any more in damages through the theory that they were assigned more of Puckett's original cause of action than was received through subrogation. Puckett was expressly mentioned in the judgment, along with the provision that he take nothing individually or in addition to the amount awarded to the Insurance Companies. In view of our affirmance of the judgment entered, the defendant, upon payment of the judgment, will have extinguished all of its liability, and for an amount which certainly does not exceed the amount established against it through the verdict of the jury. See Fort Worth & Denver Ry. Co. v. Ferguson, Tex.Civ.App. Fort Worth, 1953, 261 S.W.2d 874, writ dis. w. o. j.

In the pleadings upon which the case went to trial plaintiff alleged that the defendant, through its agent, servant and employee Ferguson, acting within the scope and course of his employment, was negligent in transferring gasoline from a tank truck into an underground storage tank without keeping a proper watch over the operation. Plaintiff further alleged that the defendant was negligent in having and keeping more than 250 gallons of gasoline in the building upon the occasion in question, and was negligent in using a filler pipe located within the building to fill the underground storage tank. Said acts of negligence were also alleged to have constituted the proximate cause of the fire and damage therefrom resulting. Special issues were submitted to the jury upon each ground of negligence so plead, and the jury found affirmatively in its answer to each, also finding such negligence to have constituted the proximate cause. There were other grounds of negligence plead but not submitted, of which we need take no notice on the appeal. Plaintiff also proceeded on the theory of res ipsa loquitur, pleading accordingly, and in answer to issues submitted to it thereon the jury found that the fire damage occurred by reason of 'negligence on the part of the Defendant, Wichita City Lines, Inc., or its employee, Albert T. Ferguson', and that such negligence was a proximate cause of the damage in question.

Upon the matter of damages, the jury found the plaintiff's building and lot to have had the reasonable cash market value of $70,000 immediately before the fire occurred and the reasonable cash market value of $40,000 immediately thereafter, and the reasonable cash market value of plaintiff's personal property located in the building to have been $10,000 immediately before the fire occurred and $3,000 immediately thereafter.

It was indisputably established by the evidence that when the plaintiff leased the building to the defendant in 1951 there was an underground gasoline storage tank of 280 gallon capacity located on or under the building near the alley entrance. The filler pipe to this underground tank was located on the inside of the building, contrary to provisions of an ordinance of the City of Wichita Falls. As a part of the use of the building, the defendant intended to and did use the same to store its buses at night. It intended to and did use the underground storage tank to service the buses stored therein. The filling of such storage tank, except during daylight hours, was contrary to provisions of a city ordinance. The having or keeping of more than 250 gallons of gasoline in a single room, or in contiguous rooms, occupied by one person, firm or corporation, was contrary to provisions of city ordinance. The defendant needed more than the 280 gallon capacity of the underground tank on week ends, and in view thereof it had arrangements with its supplier, The Texas Company, to park a tank truck containing 678 gallons of gasoline inside the building near the filler pipe just after noon on Saturdays and...