Firemen's Ins. Co. of Newark, New Jersey v. Burch

a reversal court ordered 65-1555BR. to dismiss instructions remand with OF COMPANY FIREMEN’S INSURANCE ordinances; Petitioner, NEWARK, JERSEY, NEW concerning those to the issues Pasadena, other- lost its case having since interest wise, any further was without ux., Respondents. L. et Jesse BURCH issues.

those No. B-914. the courts We reverse Supreme Texas. Court of trial the cause and remand below 9, 1968. Oct. opinion. this for consistent with court trial

Rehearing Denied 1968. Oct. TO MOTION DISMISS ORDER ON Rehearing Dissenting Denied and Second Opinion Jan. Houston, Pasadena, City of City of Attorney County as Harris County Texas, Hum attorney the State of for filed Refining Company, have Oil and

ble grant asks that this court

a motion which rehearing, aside set motion for

Houston’s opinion judgment, rescind

our former application granting order Pasadena’s

our error a dismissal of

for writ of and order application for writ of error.

Pasadena’s was filed until after motion opinion just

this court handed down its prepared it the mo-

before to rule on rehearing filed. which Houston

tion effect, court, that motion asks this

leave force of the court appeals.

civil It dismissal ask cause, though cause states Instead, asks

has been the motion settled. proceedings in this

a dismissal

court. a case which concerns This is municipalities and

public of other interest rights taxpayers, under the Munic-

ipal this mat- Annexation Act. is a Since public governed

ter of concern Act, we we determined the motion.

should overrule today, motion for

We have on Houston’s

rehearing, withdrawn our former

and remanded cause to trial disposition. A its motion dismiss appropriately present- more

cause would court.

ed to the trial

The motion overruled. sitting.

McGEE, J., not Buttler,

driven Sarah Larry the wife of Buttler. Dorothy Burch husband, and her Burch, L. Larry sued and Sarah Jesse Buttler for damages and this action has not been determined. December On L. Dorothy and Burch filed Jesse this suit in declaratory the form a judg- against ment Company Firemen’s Insurance Newark, Jersey. New The insurance company filed cross-action the trial declaratory entered a judgment de- creeing that: defendant Firemen’s Insurance “[T]he Company Newark, Jersey, New obligated by Policy virtue of its No. AFT Larry 322361 to defend Buttler in J. 152,097 styled Cause Dorothy No. M. Burch, vir, Buttler, et vir v. C. et Sarah the 53rd District Court of Travis Judicial County, Texas, Larry and that since J. Buttler is liable for the torts his Buttler, during Sarah C. their committed marriage, defendant, In- Newark, Company surance New Jersey, Policy obligated by virtue of pay No. AFT 322361 behalf of to on Larry any judgment Buttler rendered J. against 152,097 him in said Cause No. to policy coverage, the full extent of its ” * * * The court declared that the insur- also obligated ance to defend obligated Sarah Buttler1 “not C. and was pay any judgment her” rendered in the case Burch v. Buttler. Small, Craig, declaratory & Herring, Werkenthin judgment was affirmed Herring Shannon, Small, Jr., Appeals. C. C. Charles 306. of Civil 426 S.W.2d Shannon, Austin, petitioner. E. Bob the insurance company’s duty jus- defend Colbert, Kidd, Garey, Colbert & Joe complaint ticiable made of the issue. No Austin, respondents.

trial disposition this issue and court’s portion the trial court’s NORVELL, Justice. relating thereto will not be disturbed. 1,1965, Dorothy However, Burch was portion On December the decree which in attempts in a between the car injured collision to declare the riding company upon any judgment which she was automobile 10, 1967, Larry Buttler have Buttler and Sarah Sarah was the Hilton wife of will, however, been and at the time of Cromier. She divorced be referred cause, May herein as rendition of Sarah Buttler. Appeals erred “The Court of Civil rendered may hereafter be legally Larry ad- Buttler was purely of Burch case of the insur- the terms power obligated within visory beyond nature damages pay render. ance here involved jurisdiction district court to (Sarah his trial the tort of wife portion occasioned Accordingly, such way par- in though Buttler) he no even court’s is vacated. ticipated therein.” held repeatedly This court has in Appeals erred Constitution, “The Civil the Court of

that under our Larry any ad in power failing hold that event giving not the of to embrace Corbin, tort legal obligation a of visory Buttler’s for opinions. Morrow wife, nor participated California not in aided (1933); Tex. his S.W.2d him, Inc., Products, Juice, or abetted be the amount Inc. Lemon should v. Puretex community estate his interest (1960); of 160 Tex. S.W.2d marriage subject execution to Insurance the United Life Services liability petitioner’s under consequently Delaney, (Tex.Sup.1965), 396 S.W.2d 855 such its would be limited to Article and authorities therein cited. Vernon’s amount.” Constitution, 8 of the Texas § empower not the district Ann.St. does opinions juris- courts to render such and as by these The contentions raised delin- diction is a matter of constitutional questions of law points present interesting eation, Legislature the could not and has opinion of the by the as is demonstrated De- passage the the Uniform question posed Appeals. Court of Civil claratory Judgments Act, empowered the this the under facts is whether or advisory opinions. courts to district render the torts case, Larry Buttler is liable for the again In this court reiterated But, wife, no Sarah Buttler. his principle opinions giving such has Mrs. Buttler yet decided whether judicial function, gov- not a that in but her render a tort would committed affairs, duty ad- ernmental the render to damages Burch. That liable to Mrs.

visory opinions executive is vested cause in the untried issue involved government private branch of that present, question v. Buttler. At Burch business, is the giving advice held be hypothetical Buttler Mrs. —“If legal profession. function Cali- of the tort, damages for liable to Mrs. Burch Products, fornia Inc. v. Puretex Lemon liable also Larry held to be Juice, Inc., 160 Tex. S.W.2d con aid abet in the although he did not or (1960). Also in the this Puretex be alleged which is to duct of his quoted court cited Ladner from an question be tortious.” Should (1928), Pa. Siegel, 294 A. 274 as “iffy” swered, following then correctly laying proposition down the that liable Larry Buttler be held arises. If Judgments gives Act tort, his wife’s should pass or power upon hypothetical court no to to limited petitioner company be situations, ques- contingent determine or in the com interest amount of his tions not then essential the decision of subject to marriage munity estate ques- controversy, although actual such ? execution adjudi- require inmay tions the future cation. should fail course, Mrs. Burch Of if Buttler, the Mrs. parties Puretex establish her case controls this case. points would hypothetical, by petitioner’s posed problem questions a raised have which is we would “iffy” contingent. purely Firemen’s Insur- academic judicial wheel here, Company, presents ance amount petitioner as had a considerable nothing. following points spinning of error: appears appreciate parties private plane being piloted can a We well prefer by this definite answer Nathan Weissman Prashker Harold by petitioner’s passenger questions posed Pittsburgh, court to the crashed near Pennsylvania. points an “educated rather than to take Both Prashker and Weiss- guess” study prior man upon based our de- were killed. Weissman’s administratrix cases sued corporation cided and authoritative materials as to estate and the Prashker’s hold, as, plane. what we would if and when the owned Notification was — questions given form. justiciable Liability are insurance carrier. However, pro- upon was denied giving ground as to of advice that Prashker posed possible ju- plane or is not time settlements crash was vio practical lating regulations matter if dicial function. As Aero Civil reason, be left nautics for no other must Administration and hence loss came profession. within an policy. the exclusion the of Prashker’s corporate estate and the owner Mears, 111, In Lide 231 56 v. N.C. S.E.2d plane then sued the com insurance (1949), approval 404 with in the cited pany seeking a declaratory judgment de case, Supreme Puretex North the Carolina termining that the accident was covered Court said: by policy and that the insurance com pany obligated was to defend. New “There misunderstanding is much York court held in a unanimous object scope legislation of this by written Judge Van Voorhis in that (Uniform Declaratory Judgment Act). company surance was bound to defend Despite contrary, it some notions to the Weissman action but that the suit to declare not does undertake to convert company whether or not the insurance was impose tribunals into counsellors liable policy premature on the was and must advisory upon duty giving them disposition await of the Weissman opinions parties may any who come action. The court said: into court for either academic and ask enlightenment practical guidance con- or “The courts not hypo do make mere cerning legal their affairs. Town of adjudications, thetical where there is no Tryon Co., v. Power 222 Duke N.C. presently justiciable controversy before 200, 450; Sharp, 22 v. S.E.2d Allison 209 court, and where the a existence of 477, 27; Poore, N.C. 184 S.E. Poore ‘controversy’ dependent upon hap 791, 532; 201 N.C. 161 Anderson S.E. pening future events. Life Guardian on Declaratory Judgments, section 13. Graves, App. Ins. ofCo. America v. 268 may observation be stated in 618; Maryland Div. 48 N.Y.S.2d vernacular in Uniform this wise: The D.C., Tindall, F.Supp. Cas. Co. v. Declaratory Judgment does not li- Act Cir., 905; affirmed 8 F.2d American ponds litigants cense in judicial to fish Fidelity Co., & Cas. Co. Service Oil advice.” Cir., 164 F.2d 478. In last-cited page any said ‘if court that from other investigation Our of cases subsequently arise be should jurisdictions us further convinces that tween the company insured and the as to advisory opinions rules as heretofore the coverage policy, be liti can represent enunciated our courts2 gated as well after the conclusion of the sounder view. In Prashker v. States United ” litigation in the state as now.’ court Company, Guarantee N.Y.2d (1956), the Similarly, N.Y.S.2d 136 N.E.2d 871 in State Casual- Automobile & Appeals ty Court of New York considered Gardiner, Underwriters v. 189 Kan. that us. It (1962), similar now before 370 P.2d the insurance forth, Delaney, (Tex.Sup. set collation of Texas See cases S.W.2d 1965). in United Insurance Co. Services Life REHEARING declaratory proceed- FOR urged ON MOTION upon an ing that it was not liable driving of (reckless for the tort SMITH, (dissenting). Justice because Gardiner truck) Walter James that the I am now convinced the vehicle driving was not Gardiner in error in figured consent collision declaring the the trial court insured, Mulder. A number Leon upon any Company Firemen’s Insurance against Gardiner suits had been filed may in the judgment which be rendered pointed out The Kansas court Mulder. “purely case of Burch v. Buttler was ad- to ob- seeking company was the insurance visory beyond power nature and very at least one predetermination tain a jurisdiction the district render.” actions. tort cogent pending element agree general proposition I purpose said, “This is not the The court judicial power does not embrace declaratory judgment seeking relief opinions. giving of At the same advisory permit such will this court action and time, recognize Court should procedure.” prohibit Texas ad- Constitution of Farm compare: Tennessee See also visory fact, opinions In definition. Company v. Ham ers Mutual Insurance power” “judicial there is no definition 106, 860 mond, Tenn. 290 S.W.2d 200 in the The Constitution. Texas Constitu- Mutual Automobile (1956); Farm State provisions “judi- tional with reference to 572, Semple, Pa. 407 Company v. Insurance power” very cial to similar the Federal Hartford (1962); Burns 180 A.2d 925 Constitution, Section 1 of Art. (Fla. Co., 157 So.2d Acc. & Indemn. provides that, of Power “[t]he Co. Liberty Insurance

App.1963); Mutual States, United shall be vested in one su- 1941); 20 (5th Lee, Cir. 117 F.2d 735 preme in Court and such inferior Courts 75; Courts, Courts § C.J.S. Am.Jur. Congress may time from to time or- 36, p. 46. § dain analysis, and establish.” In the final question is, parties, Burch, have the possibly jurisdictions While other in seeking a declaration of Firemen’s li- provisions different constitutional having ability under its in of a advance present hold from our may differently hold determination that legally Sarah Buttler is announced result here ing, we feel responsible injuries, for the Burch in previous our keeping is in with Firemen’s, cross-action, seeking in Lemon Products, Puretex Inc. v. California liable, presented it is declaration that an Inc., 334 S.W.2d 160 Tex. Juice, controversy actual meaning within the of a constitutional of (1960). In the absence Declaratory the Uniform Judgment to Act? Texas courts authorizing the provision parties Although have, my both in opinion, power does opinions, such advisory render issue, purview drawn an within the may not be conferred exist and Act, Uniform Judgment parties. agreement Court, motion, on its own has raised the are below the courts judgments question and held that under the record the trial portion of That part reversed. in this merely Court is asked to duty de- to to the relating court’s render advisory hypotheti- an on a judg- portion is affirmed. That fend cal state of conclusion, facts. With this I rights to declare purporting ment respectfully disagree. com- petitioner insurance obligations issued insurance its contract of pany under Underlying concept of justiciability Larry is vacated. requirement is the parties having ad- legal verse interests be equally between involved a real adjudged are Costs Jesse In- substantial controversy. Aetna Life Dorothy Burch L. and Haworth, Ins. Newark, Jersey. New 300 U.S. Company S.Ct. surance Borchard, (1937); 81 L.Ed. De- left unfulfilled when a court refuses claratory justiciability dispute be- 1941). recognize ed. of a Judgments (2d 33-56 controversy, however, in- requisite tween an and the insurance jured party not have to until obtained point where reached as- an or invasion In answer invasion threatened insurer. rights declaratory judgment It suf- that a already has occurred. sertion present practical “premature” if need or that there is ficient there is antagonistic “contingent possibility dispute”, for the of an future determination that: rights assertion and between Professor denial Borchard states parties having legal adverse interests probability is a “If there human respect question. issue This has impends jeoparty prejudice or danger or particularly been true in the area of insur- quarter, from a sufficient certain example, ance. For where a tort claim- has warrant a interest been created to already gotten judgment against ant an * * * danger or threat. removal defendant, insured is settled that practical- It probable, seems clear claimant has a sufficient interest inevitable, injured person ly claims anof party as a third bene- contract can casualty policy under the usual never ficiary justiciable controversy for a to exist hypothetical or merely be deemed insuf- Develop between him insurer. ficiently ripe adjudication ments Declaratory Judgments, Law — Borchard, liability” question of insurer’s (1949). Harv.L.Rev. More Declaratory Judgments (2d 1941). ed. over, if a damage brought against suit is present The record this case does not insured, there, course, exists a justi- possibility dis- or mere remote future ciable between the insured and pute; present a real and substan- facts respect the insurer the insurer’s A controversy parties. tial between the obligation Maryland to defend the suit. decision this Court of the issue drawn Co., Cas. Co. Pacific Coal and 312 v. Oil pleadings the in the trial evidence 270, 510, U.S. (1941); 61 85 L.Ed. S.Ct. 826 finally court will determine the adverse America, see v. Evans General Ins. Co. of positions parties. The Court does 390 (Tex.Civ.App.1965, S.W.2d 818 no not reach the merits of the case. There- writ). fore, this dissent the facts refers to If, as in present the injured the purpose emphasizing for the is that this party’s suit still the insured is genuine a declaratory judgment action pending, most courts have reached the con- brought a whether or not determine justiciable controversy clusion a is legally husband liable under the terms of injured party exist between the in- and the “Family Policy” pay a dam- Automobile surer the concerning issue of the insurer’s solely ages arising of a tort committed out policy.1 under the Bor- Professor “Family his wife. Pol- Automobile chard, a co-draftsman De- Uniform icy” by Larry involved was Buttler obtained claratory Judgments Act, points out that Sarah, 1963, they and his in while one of the purposes main of the declara- wife; together were living as husband tory judgment is to remove clouds from policy year; was renewed each Buttler legal they relations before become com- mid-October, separated and his in wife pleted submits, attacks. purpose, 1965; he 1, occurred collision December Maryland (2d 1941); Develop Cas. Co. v. Pacific Coal and ments 646-652 ed. Co., 270, 510, Law—Declaratory Judgm Oil 312 U.S. 61 S.Ct. 85 ments en (1941) ; ts, (1949). L.Ed. 787, 826 Standard Cas. Co. v. A Harv.L.Rev. Boyd, opinion Appeals 75 S.D. N.W.2d Texas is Civil (1955) ; Sheppard St. Paul Fire and Marine Ins. in accord with this view. v. Johnson, Employers Co., 216 Ga. 117 S.E.2d Cas. 365 S.W.2d 367 ; (1960) Borchard, Declaratory Judg- writ). (Tex.Civ.App.1963, no any in time; relations of rights legal 1965; at that other policy was effect of in car, contracts party arising from terested driving her father’s one was Sarah litigation are parties to Fire- surance. The in the collision. cars involved They seek parties. definitely Buttler interested position that since men’s takes the determination and are entitled Insured” only was listed as the “Named coverage separated of the extent the Buttlers were since Maryland Consum policy. Co. v. obliga- See Cas. collision, it the time had no Service, (3rd Cir. ers 101 F.2d 514 any judgment Finance pay tion to defend Sarah or Haworth, 300 1938); Aetna Ins. Life Co.v. against Buttler rendered because (1937). 81 L.Ed. 617 any, U.S. S.Ct. negligence, if of Sarah. Firemen’s provide that was liable admits Furthermore, respectfully disagree I with is- was defense. When that our case of Cali holding Court’s wife renewed Buttler and his sued and Products, Inc. Puretex Lemon fornia household; in the same living were Inc., Juice, 160 Tex. S.W.2d community. premiums paid by the were case. As heretofore (1960) controls this per- should not be indicated, quarrel gen I have no obligations mitted to avoid its contractual proposition advisory opinions are eral policy merely under the because Sarah scope judicial power, I outside but It not listed a “Named Insured.” that Puretex disagree with view question hold that unsound to because the Puretex, here. In decisive negligence of Sarah’s deter- not been declaratory judgment not settle would possibly may be mined and never deter- controversy. In our case there is no mined, present case would “fish[ing] judicial ponds ad purely advisory. This Court the case Puretex, vice.” In we : said Harrington, 144 Tex. Cobb 709, 172 (1945), gave S.W.2d A.L.R. 837 rendered declaratory judgment “A Declaratory a liberal Judgment Act controversy not settle herein construction in situa- factual in- permanent parties. The between tion there within ** * outstanding. junction still meaning of the Uniform subject A of that violation Act, Judgment 2524-1, Article Vernon’s contempt proper punished to be Texas Revised Civil Statutes Annotated be determined It cannot proceeding. (1964), “even had before the wrong” actual- bottle will be proposed not a whether or * * * ly injunction been committed. issued violative of market Products seeks to until California the facts in light of In the market the same in a bottle-in product its justiciable * that a * * recognize should we Should de- with Puretex. controversy been to be used proposed cide that the bottle within the con squarely brings case did violate the in- Products California authority. The grant of judicial stitutional nothing. Cali- junction, we would settle judicial declaration call for facts pro- indefinitely could continue fornia under obligations of Firemen’s contractual sizes, shapes pose bottles of different parties are policy. The the terms of its equally on which it could seek colors declaratory judgment which entitled to opinions advisory number indefinite * binding adjudication * constitute added.) (Emphasis Douglas Oil rights. See their contested example, far Our case is different. For State, (Tex.Civ.App. 81 S.W.2d Act, just party Firemen’s is not and Declaratory Judgment cannot 1935). Our Act, 28 the suit Buttler and Judgment between Burch. as does only pow in which pending trial courts case case gives U.S.C. § controversy policy coverage to declare can be decided. issue actual er cases question coverage extent policy husband, Larry affords Buttler, on account of the torts of his

Sarah, no one else. do not have We change of a in size bottle as

in Puretex. So far as this case con-

cerned wife we one and one insured one case which Perhaps “iffy”

can be it is an decided.

proposition as whether .or not Sarah will tort, guilty a compensable

be found but “iffy” nothing proposition

there is

that a lia- as to the contractual

bility, any, if protect under

Buttler will be final. COLEMAN, Appellant,

Ossie Lee Texas, Appellee.

The STATE of

No. 42102. Appeals

Court of Criminal Texas.

May Dickens, Worth,

Charles Fort Ap- (On peal for appellant. Only) Coffey, Frank Atty., Dist. Ronald H. Hill, Jr., William Knapp A. and Truman Power, Attys., Asst. Worth, Dist. Fort Vollers, Austin, D. Atty., State’s Jim the State. OPINION ONION, Judge. malice;

The offense is murder punishment, years. assessed jury, appellant does not challenge the suf- ficiency of the evidence. The record shows appellant estranged shot his wife, Armentha, four they times while car, were seated in a six-year- their daughter old them, between Dairy

Case Details

Case Name: Firemen's Ins. Co. of Newark, New Jersey v. Burch

Court Name: Texas Supreme Court

Date Published: Oct 9, 1968

Citation: 442 S.W.2d 331

Docket Number: B-914

Court Abbreviation: Tex.