Wright v. Allstate Ins. Co.

• Decision Date: 22 July 1955
• Docket Number: No. 14986,14986
• Parties: William P. WRIGHT, Appellant, v. ALLSTATE INSURANCE CO., Appellee.
• Court: Texas Court of Appeals

Page 376

285 S.W.2d 376

William P. WRIGHT, Appellant, v. ALLSTATE INSURANCE CO., Appellee.

No. 14986.

Court of Civil Appeals of Texas, Dallas.

July 22, 1955.

Rehearing Denied Jan. 6, 1956.

Carter Gallagher, Jones & Magee, and Ben T. Warder, Jr., Dallas, for appellant.

Thompson, Knight, Wright & Simmons, Pinkney Grissom and David M. Kendall, Jr., Dallas, for appellee.

YOUNG, Justice.

This suit was initiated by William P. Wright against appellee Company, the liability insurance carrier of Earl Leroy Andreasen, to enforce payment of a judgment theretofore obtained by Wright against Andreasen in District Court; said judgment following the court's approval of a compromise settlement agreement had between the parties (Wright and Andreasen) in amount of $2,250. Pursuant to provisions of Rule 166-A. Texas Rules of Civil Procedure, plaintiff Wright and defendant Company filed motions for summary judgment in the instant proceedings; and defendant's motion having been sustained, the resulting judgment adverse to Wright is the subject to this appeal.

The following antecedent facts appear without dispute: That as of July 31, 1952 appellee issued to Earl L. Andreasen its one-year policy of automobile liability insurance, describing the vehicle insured as a 1949 Plymouth; that on June 3, 1953, while driving a GMC one-half ton pickup truck belonging to one W. B. Rutledge, Andreasen became involved in an accident with Wm. P. Wright as the injured party. Claim then being made by Wright against Andreasen, appellee Company denied coverage, and upon Wright's subsequent filing of suit, said Company declined to defend; that thereafter a judgment was rendered in Cause No. 80,473-D, styled William P. Wright v. Earl Leroy Andreasen and W. P. Rutledge, said decree containing recitals of waiver of jury and announcement by the parties that a compromise settlement had been effected on terms, to wit: That Wright would take judgment against Andreasen for $3,000 of which intervenor Great American Indemnity Company (not party to this appeal) would be entitled to $750; the judgment further reciting that the court 'having heard the pleadings, evidence and argument of the parties, and being of the opinion that such compromise by way of agreed judgment is fair and equitable and should in all things be approved, * * *.'

Condition 4 of the policy, entitled 'Action against Company,' provides: 'No action shall lie against the Company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined, either by judgment against the insured after actual trial, or by written agreement of the insured, the claimant and the Company.' Insuring Agreement No. VII of the policy, headed 'Use of other automobiles,' recites in part: 'This Insuring Agreement does not apply: (1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to, the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse'; further reciting in section VIII that it did not apply 'to any automobile while used in the business or occupation of the named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, chauffeur or servant.'

Opposing motions for summary judgment were supported by affidavits; appellee's position before the trial court had here being (1) that no liability existed as a matter of law, the affidavits establishing that at time of the accident Andreasen was driving a pickup truck, not covered by defendant's policy as 'a private passenger automobile' used by insured in the course of his business; (2) the truck in question was furnished to Andreasen for 'his regular use' and therefore not covered; and (3) that appellee's said motion was properly sustained because the prior judgment on which appellant has sued was not one obtained 'after actual trial,' as required by appellee's policy of insurance. Appellant, in his points of error, takes the opposite view; at least that a fact question exists of (a) whether the pickup truck owned by Rutledge and driven by Andreasen, the assured, was furnished for his regular use; and (b) whether or not said pickup truck driven by Andreasen was a 'private passenger automobile' within the terms of the liability policy issued by defendant Company.

However, reverting to appellant's points in order of presentation, he first urges error in the court's ruling (grant of summary judgment to defendant), because (1) 'the judgment approving the compromise settlement agreement, upon its face, was a judgment 'after actual trial' as that term is used in the policy issued by the defendant.' Here appellant relies solely upon Travelers Ins. Co. v. Reed Co., Tex.Civ.App., 135 S.W.2d 611, 615, where a compromise settlement and judgment in accordance was held to sufficiently comply with an insurance policy requiring that "No recovery against the Company shall be had hereunder until the amount of loss or expense shall have been finally determined either by judgment against the Assured, the claimant, and the Company * * *.' (Emphasis ours.)

By counterpoint, appellee argues inapplicability of the cited case because of substantial difference in policy requirements; admitting, in the instant case, the existence of a valid judgment against Andreasen; not equivalent, however, to one rendered against the assured 'after actual trial.' In this connection Andreasen, testifying by deposition, stated that he was not present in court on approval of the agreement of compromise, not believing he was at fault, but consenting to the judgment on condition that, as to him, it would be released; it being stipulated at time of deposition that he was 'judgment proof.'

As a type of judgment, the meaning of a final decree pursuant to consent of parties, has been established in a multitude of cases. On the other hand, the term 'judgment following actual trial' does not appear to have been judicially passed upon. ¹ '* * * It is elementary that a judgment by consent is one the terms and provisions of which are settled and agreed upon by the parties, and which is entered of record by the sanction and authorization of the court. It is of course essential that the parties themselves agree upon all of the terms and provisions, and the court has no power to supply terms, provisions, or essential details not previously agreed to by the parties.' Matthews v. Looney, Tex.Com.App., 123 S.W.2d 871, 872. In Prince v. Frost-Johnson Lumber Co., Tex.Civ.App., 250 S.W. 785, 789, a prior judgment by...