*1 «83 PENN- ARROW et al. v. COACH LINES et al. CASUALTY CO. SYLVANIA

No. 9904. Appeals Austin.

Court of Texas. Civil

Oct.

Rehearing Denied Nov. Price,

Strasburger, Holland, Kelton & Miller, Price, Hobert pellants. Hart, Sparks, by Hart, Brown & H. J.

Austin, appellees. HUGHES, Justice. controversy is between two insur- companies, each

ance of which was the in- company. Appellee of a different bus surer Pennsylvania Casualty Company was the .Coaches, insurer Highway Insurance Underwriters- was the of Arrow Coaoh insurer Lines. present parties are Other since but by the judgment are in no affected *2 purchaser veyed contract, but the further be complaint will not make no proceeding with assumes of the burden noticed. diligence own cost reasonable and at his a suit subject-matter of the expense approval within to obtain such acci- from which arose of claims number hereof.” a reasonable time from date Creamer occurring dents on 1945,the June, a On before the 16th or subsequent to the execution routes but $90,000 paid Creamer and cash was Creamer of sale between contract executed' mortgage and chattel note were to Arrow, by which the Creamer by as and delivered to Creamer by under which purchased Arrow and be on agreed; and has been no default control took full contract Arrow note. prior operations their buses and Creamer of such accidents. the occurrence 15, 1945, physical At midnight June settled; pay- control of possession claims have all been Creamer These by properties were to and either delivered by Pennsylvania High- accepted pos- acting Arrow. This transfer alone or complete. We acting together. control was Underwriters session and ¡findings briefly unchallenged from quote court, acting the trial judgment of of the trial court: jury, Highway Insur- was that without “ * * n was, as it and 1945, 15, ance Underwriters midnight, After June Company, Pennsylvania Casualty ex- any Coaches nor Creamer neither clusively claims. liable for possession any inwas members agreed to properties which were Creamer dispute and facts are all without will Arrow, had, or exercised or sold to concisely possible. as as or. be stated any any over attempted to exercise control 1945, 12, and Arrow On June any properties operation or the of said contract into sales entered From mid over of said routes. prop- agreed purchase all of the 1945, 15, properties all of said night, June Coaches, including per- erties operation and control of them were etc., mits, licenses, for a consideration of exclusively. in Arrow $90,000 $140,000; to be on or before 1945, 16, balance and the evi- june 15, weeks after a few “Within June bearing interest a note denced 1945, Lines removed from Arrow Coach 1945, payable monthly in- Texas, shops main- Temple, the officesand June This note secured stallments. Temple Coaches at until tained properties being on mortgage chattel 15, 1945, 1945; and after June June provided further contract that: sold. The Arrow, consultation with rearranged changed such of the bus prop- shall take over the purchaser “The change; Arrow chose to schedules as this contract of mid- erty covered persons op- as it chose 15th, 1945, hired such including all sched- night, June routes, over the and dis- erate the buses midnight operated or after on such ules employment charged discontinued pay operating all or shall The seller date. employees as the former Creamer expenses up such of midnight of said current discharge operat- Arrow chose discontinue purchaser assumes all date and employment.” from and expenses midnight date.” said 7, 1945, August the Railroad Commis- prorating also made for Provision was application permis- approved the sion taxes as of ad valorem permits to to sell the Creamer sion Railroad provided August and on The contract “This that: Arrow and in Arrow’s issued to things subject all mission is in duplicate permits or certificates in appropriate State and Federal name gov- formerly held Creamer charged by lieu of agencies law with the ernmental those 23, 1945, August by it Since of the business sold sold to Arrow. supervision and con- Com- and compensation has not him held awarded authorizing insurer, of Arrow and its mission Underwriters. From this award Arrow and buses. *3 Highway appealed to the District Court. to from Arrow The sale Creamer injured The passengers two sued both by proved Commerce Interstate Arrow and Creamer in the District Court. IS, mission on March 1946. Creamer, Arrow acting jointly and and on the were three accidents There prejudice themselves, without settled 15, subsequent 1945. lines Creamer June by these paying three suits the driver July 1945, in on 1, occurred first $4,500, $500, passenger one and the other County. an au- Lampasas In accident passenger $5,000. destroyed, woman serious- tomobile Pennsylvania Casualty Company knew Claims ly injured, and a small child killed. proposed from sale Creamer arising accident were asserted from this Arrow and was notified of the transfer of Pennsylvania both and possession and control of the Creamer Pennsylvania, paid by settled and but were 15, on 1945. by Highway, for June participation $425. 1945, May was one involved collision The bus anticipating that from purchased Arrow Creamer ownership it would continue and 12, of during 1945. of remainder of June 1946, Pennsylvania directed accident occurred on October The second Compensation renew its Workmen’s 6, that date of the buses one policies expiring insurance bought from under Creamer 26, Pennsylvania on 1945. This did. June 1945 contract overturned while the June 16, 1945, Arrow, After while in traversing a bus route. Several Creamer June complete of lines, kept control the Creamer injured of bus were and as- passengers separate accounts business done over against both the serted claims the Creamer routes. From these accounts refused Arrow lines. Arrow Lines Arrow-paid monthly premiums Pennsyl- participate compromise, adjust- policies vania "on the Creamer claims, of about and settlement policies each until the were cancelled paid by Pennsylvania $800 they were settled and on November These behalf Coaches. were in full settlements satisfaction These accepted were and have damages injuries of all sustained by Pennsylvania been retained with full overturning claimants such bus. knowledge that Creamer Coaohes did not Pennsylvania amount total to operate the Creamer lines after satisfy $4,460.10. these claims was operated but that were by Arrow such date. third, On November last, happened accident occurred. not, did time, issue one of the Creamer routes but the bus in- any policy of insurance to Arrow Coach belonged volved had never to Creamer. It Lines.

was obtained from sources. . policies public liability insurance The cause the accident was the defective by Pennsylvania issued and Highway to condition of Two passengers the bus. Arrow, respectively, contained injured and the bus driver were in this acci- provision: dent. The driver filed his claim “It is gaive Industrial Board understood that the Accident his to which employer this endorsement is attached is Coach Lines. Creamer to be offered insurer, filing the above named Cas- insured with ualty Company, impleaded Commission of in the claim Texas as a precedent condition before the Board. The to the privilege op- Board found that driver was erate as a motor bus company not an within the policies in effect for the authority Texas under State necessity final benefit Creamer until of convenience certificate * * sale of ICC of the the Creamer issued. heretofore to Arrow Coach Lines.” “ * * * Coverage this en- granted error, Appellant points of has numerous be- motor buses applies to also dorsement of which most are based on the contention direction of the under the longing to or premises has be- that it in the particularly identi- named insured Pennsylvania, knowledge cause with full policy, the same are while fied facts, accepted premiums all named in the business by the insured it, appellant, *4 no whereas received the passengers for hire within carrying premium payments increased after Arrow Texas, and of the State boundaries operation took of the Creamer buses. over of the statute coming the terms within position, agreed If incorrect in this to, is sub- referred and it that above limits, urges lant and are each policy endorsement that it ject to the upon liability imposed by liable for one-half the reflected law losses the covers bodily by reason of record. named insured the of, to, any persons other injury death Lastly, appellant questions right of the employees, and his insured than the named to bind settle- claim damage property of to the or loss or ments made without consent. insured oc- than the named persons other non-liability arguing appellant In cites policy, said curring the term of only: Trinity these cases Universal Insur through of such motor buses the Martini, Tex.Civ.App., ance Co. v. De 118 of the State of within the boundaries Paso, (El Ref.); Sly 901 Writ v. S.W.2d .Texas.” Indemnity Co., Cal.App. American 127 911b, 522; Bendy, 15 Art. Vernon’s Ann. P.2d Glens Falls Ins. v.Co. Section St., requires Tex.Com.App., a motor bus carrier to file 58 1; S.W.2d American Civ. Hookfin, Employers’ both Work- Ins. v. the Railroad Commission Co. Tex.Civ. App., in- Compensation (Galveston, and 33 805 S.W.2d men’s Writ provides Surety can- policies ; Jetton, and the Federal Ref.) and Co. v. surance permit under which the Tex.Com.App., the cellation of S.W.2d policies operates, unless the are carrier that, The first two cases are effect provide in force as to continuous kept “so liability insurance, as the of title protection public the hav- unbroken ownership to or of motor vehicle is not against such motor carrier.” legal claims to the risk. The material soundness of this found questioned trial court further that: rule the but rule of no “ * consequence here, * liability poli- the because time the sales At the Penneylvania appellant cies ex- made, 12, 1945, was Arrow Coach of June pressly provide “coverage granted that of the sale the that Lines knew applies also indorsement to motor and the could Commission ICC belonging to or under the direction of the some months obtained for after not be named insured.” pending approval of 15th, the sale and that duplicate certificates to In the Glens Falls case and issuance the court held required by provision the in a policy insurance law fire that insurance void, rendering on the buses must be main- if carried to be foreclosure premiums accruing proceedings on it were instituted tained insured, operating knew that the paid; property and Arrow was waived where in- prop- lines' company past expenses surance collected due and un- prem- include of such earned after notice of the erties would com- proceedings and claims.” mencement of such iums property by loss of the fire. Continuing, the court found that such by Arrow will be noted that this payments made to Penn- case is premium between company purpose insured, and the keeping “'for the the insurance who sylvania not, by contract, employer together company were bound bond bar, was two insurers issued or as in the between intended to case at be issued company privity plant exists. employer of contract to cover whom no and such holding would be both found case the trial court In the Hoofcfin unjust.” unsound and testimony em- upon sufficient oral Compensa- ployer took two out our holdings of and group policies, tion cover a certain one'to principles discussed in the two cases a dif- employees the other to cover last above reviewed are much more to the employees, accordingly group ferent appellee benefit of appellant. than They company. separately held each emphasize where, here, hold that respectively employees for the liable privity is no of contract between two group holding insured. insurers who attempting to shift a loss proved appeal, saying: “There the court from one to the other that must be was, therefore, no double insurance solely based undertakings true instance, very terms and under parties. involved, policies exclu- two Pennsylvania undertook to insure Cream- *5 com- sively amount of the liable for the full er and Creamer alone. The due, pensation being fur- found to policy provided which it issued that Cream- privity thermore whatever no er was the insured and that “coverage Company Union between it and the granted by this applies endorsement also to risk.” reference this to motor belonging buses to or under the di- was a Com- case Jetton rection of the named par- insured and not pensation undisputed suit. The evidence ticularly identified in policy this while the company against showed that the being same are used the named insured judgment was rendered the trial which a in the business carrying passengers employer at the court had not insured the hire.” injured, where the location any Creamer was not using of the büses was carried an- but that such insurance involved in the three at accidents the time company. reversing and render- of such accidents. Arrow and Arrow alone court judgment this the said: using was then the buses in tihe“business of “There is contention that it was the passengers carrying for hire.” In fact employer carry intention double of the when the last two financially and more insurance, and it is furthermore shown serious accidents (October occurred 6 and dispute privity that there is no 14) lawfully November not could between contract whatever the Federal engage in transporting business of Surety Company and the Commercial passengers for hire over his former routes Company with refer- Standard permits because his had then been lifted nothing is There ence to risk. to Arrow reissued the Texas Rail- any intention record to show whatever road Commission. Surety part Company Federal employer simplicity cover the at The same issue exonerates Tex., prem- it Dallas, any or that received renders High- pay way roll iums based of the em- Insurance Underwriters liable. It is- company Dallas, ployees public liability policy at of that Tex. sued a in which ****** the insured Arrow was and which extended coverage to all buses used Surety Federal “To hold that Com- while engaged the business of hauling passen- bond in favor of pany has the em- issued for, gers for hire. The as contended buses ployer and hold involved in accidents were company thereon, three so liable would existed, the accidents where none when occurred and a bond lia- create bility obligation of Arrow’s thereby an insurer follows would create as a undisputed matter of course. testimony face of both Casualty except Pennsylvania appellant irks The fact which pany premiums Insurance Underwriters. additional received no buses of the Arrow’s judgment of “An examination of the appellee premiums to payment of while the judgment trial court will show that undiminished. continued rendered favor Casual- ty only premiums Company Highway In- against not Even if the unjust enrich- surance but also appellee Underwriters constituted Cofer, Cofer, has Frank ment, how E. Alice Roberson do see we Belcher, Belcher, it to M. R. M. Robert M. O. which entitles the matter interest in however, Killion, Killion, is, Jr., Jr., those and Mrs. O.M. The truth cpmplain. prevent individually partners constituting cancellation and as paid to premiums were under Arrow Lines. Reference to Commission operated. complaint The lants’ show brief will which the Creamer judgment matter are parties these individuals interested in three Pennsylvania, trial court.” inequity. complained of neither has description judgment is cor- transac- being stranger Appellant, rect. do so. permitted to tion, will not be therefore, is, necessary explain to collect additional Appellant’s failure paragraph second where we our operation of the say: Arrow’s wholly a matter present parties “Other but since which is not appellant and one judgment and are in no affected in this suit. *6 involved complaint they further make no will not be noticed.” driver claim of As to the' Compensation Insurance for (cid:127) parties All a judg- of the whom in Novem injuries received for benefits rendered, above, ap- did ment was named accident, Accident the Industrial 14th ber peal. Only single a brief on of all behalf found that the court and the trial Board appellants ifiled. brief there In our of Arrow. driver was following are found statements: conclusively supports opinion evidence very say simple “We this is a case. that therefore, is, Appellee not findings. Pennsyl- a purely controversy It is only insured the claim since it liable for Casualty Company on the one hand vania employees of Creamer. Insurance Underwriters on appellant’s con overrule alsoWe the other. One or these insur- believed tention warrant imbursed his Bargaimes, 907 firmed. interest, “money paid (Dallas, Appellants’ Motion facts, is judgment that such appellant’s consent. for Tex.Civ.App., appellee is not entitled application even Writ claims though he be mistaken as Dis.). The facts here a volunteer.” Coke v. one, the trial court is af- settled and necessary of this rule. who for 116 S.W.2d Rehearing. good to be re protect rule faith must taken out and the versy. tions.” Lines have partners' in Arrow Coaches or Creamer ance claims either “There is no payments % companies respond Creamer Coaches or Arrow Coach involved here. suits made for and none of the actual ^[*] their bound connection with the part of the n respective liable for all rights ^[*] this contro- partners companies obliga- of the ^[*] rehearing con- for Appellants’ motion that these We assumed statements were following statement: tains appellants in good faith and thus prompted to paragraph we were write the holding that in error “The Court is .in appellants complain. now about parties judg- are affected none explanation and careful With this mo- assignments of all examination rehearing, we are of the

tion for so it should he overruled.

ordered. Lynch, Lampasas,

Hammett & pellants.

Senterfitt, Crump Jameson, & Wm. S. Jameson, Saba, appellees. San HUGHES, Justice. DOFFLE- Appellants

FUNDERBURK et ux. v. L.E. and Ora Lee Funder- et MYER al. burk, wife, husband and sued the San Saba No. 9925. Dofflemyer National Bank and W. C. appellants Bank, cancel deed from to*the Appeals Texas. Court of Civil 26, 1936, Austin. purpor- October dated which deed 97 n Nov. convey ted out of Y. acres land Gortary League, Survey in San Saba Rehearing Denied Dec. Dofflemyer County. purchased the land from the Bank. grounds relied for cancellation (1)

(cid:127)were: that the deed of October 1936, while in the form of a deed was in mortgage; (2) fact the land de- scribed in such deed had been occupied appellants as their homestead August continuously to the filing *7 suit, such and that deed void be- privy cause there was no examination of signed Mrs. Funderburk when she and ac- knowledged deed; (3) perpetrated lees fraud Mrs. Funder- by representations burk made at the time deed, signed the that the in- she effect only mortgage. strument was Appellants prayed that the deed be de- mortgage mortgage clared that the void, and, declared the alterna- tive, that the deed declared void and in recover all events lands accounting. have Judgment appellees rendered up- jury’s verdict. jury found that the deed as a mortgage was not intended but that comply notary did not with the statute in taking wife’s acknowledgment. concerning On the issues jury fraud the misrepresentations found made by