*1 Ifil reduction, complete if not de-. material struction, permanent the value capital by appellee. stock held This the directors had no do. assign- have considered presented by ments of error briefs of appellants and, opinion, in our none will, them reveals error.
therefore, be affirmed.
UNITED SERVICES AUTOMOBILE ASS’N et al.
v. ZELLER
No. 10513. Appeals Civil Texas.
San Antonio.
Aug. 30, 1939.
Rehearing 30, 1939. Denied Dec. *2 based
mentioned occurred and the rendered Zeller, court, Flanigan Monica woman, be- single her maiden name was a Flanigan. referred ing She will be Monica to herein as Monica Zeller. reciprocal ex- appellant, a insurance The Texas, change organized the laws under writing engaged principally and being officers for warrant automobile army and the United States and officers of navy, Antonio, office in home San with its Texas, policy of insurance issued its Chandler, at Rock- Captain then stationed Field, Coronado, Diego, near Cali- well San the terms fornia. Under Captain as “the designated subscriber,” appellant agreed indem- nify resulting from for “loss the assured injuries bodily from arising or suits claims alleged to accidentally suffered or death .person per- by any been suffered have sons, operation on the or maintenance based ** hereunder of the automobile as while occurring accident result of an * * * ”. The policy is in force liability of provided: “The policy further to cover as exchange extended addi- * * * though sub- tional assureds scribers, legally any persons riding * * automobile, pro- operating said *** is with the use that such vided permission Sa,n Russell, Russell, McMillan & an adult the Subscriber dr Antonio, appellant. * * household member of his Talbott, Eskridge & Groce Russell indemnify the Exchange will Sub- that “the Antonio, appellees. all San in connection against loss incurred scriber any the Sub- final SMITH, Chief Justice. ** de- Exchange will scriber brought by This action was cost, in the name of and fend at Flanigan Zeller, joined .pro forma her Subscriber, for dam- all suits behalf of husband,. Batiste and moth- John ages alleged have er, Flanigan, against K. Pearl United Serv- period, during the contract of an accident Association, subject ices proceeds Automobile false though groundless, suits are of a insur- of automobile or fraudulent.” Captain issued ance Homer Chand- required Subscriber The also payment ler of a notice, appellant “every to forward Diego County, San summons, process delivered or other citation plaintiffs favor Subscriber behalf of to or served Captain son, Chandler, Homer Chandler’s the names wit- persons,” as well as cause tried to a The Jr. whose ap- and to render to nesses to findings judgment was rendered “in infor- requested securing pellant aid $6,326, plaintiffs in favor of the amount of prosecut- mation, settlement' and effecting limit of under the suits, appeals,” pro- ing defenses and appealed. has defendant Association assuming hibited Subscriber Captain Homer Chandler will be referred liability, compro- admitting any and from Chandler, and his to hereafter son, claim, any adjusting or mising, settling Jr., twenty who was appellant. consent written age at the time of transaction years effect, contained, fa- here, inquiry will be referred to as clause”, providing “no action miliar hereinafter When the accident Junior. appellant shall not be liable unless suit scriber in his own name for monies actual- ly paid “by the Subscriber out Subscriber in satisfac- paid actually tion of judgment,” policy being his own name a final for monies indemnity final ac- in satisfaction contract of Subscriber *3 competent jurisdic- tually judgment of by of court and a suffered subscriber such liability tion after trial of of’ the issues not one posed indemnity of im- liability amount.” against the subscriber. 3. That the policy contained no “bank- by the automobile covered ruptcy or insolvency giving clause” the in- by Captain was owned jured party right to suit there- 20, 1934, car, July being while driven on in the event judgment the favor in by Junior, in was involved in an accident of such by be unsatisfied reason of City California, Diego, the San result- of the insolvency bankruptcy of the assur- personal injuries in ing to Monica ed; and that under the terms policy, of the (then Flanigan), Zeller Monica who was recovery no of thereon could inure to riding guest as a therein and there- who anyone other the named subscriber. after instituted suit the Diego County, of San injured party’s 4. recovery That said Captain recover Chandler to the California suit solely on based Junior injuries. for said “willful misconduct” of Junior company, through attorney, insurance its injuries the question, automobile in the suf- complete charge took the of fered in that willfully case were inflicted John defense suit, of filed answers for policy, both therefore not covered the Captain Chandler, deposi- took which insured the subscriber Junior witnesses, of tions the de- resulting juries arising bodily conducted from suits in- of case, fense accidentally trial of un- result of as a Junior judgment til a final $15,000 excess of was this contention being based on theory injuries him on March resulting ’from Captain having been dismissed “willful misconduct” from the plaintiffs case at the Injury Statute, St.Cal.1929, close of p. evi- Guest dence. 141¾, St.1931, Coker abandoned the defense as p. after amended § judgment, thereupon, which reason as defined suit, trial court in that abandonment, of that became final. are not the result of an “accident”. A writ execution was issued on said policy, 5. That provi- bona”, and returned “nulla sions obligating company to Junior being insolvent having no assets out assured, defend suits on behalf of the satisfied; of which the could be practice to part a contract insurer, law on of the and the having paid, attorney) which was not licensed action was district court and was against public therefore void as County, Texas, Bexar against appellant policy. Zeller, injured party, joined Monica response special issue No. pro by. appellees, forma the other sub- “implied per- found that ject proceeds pay- mission” of or Mrs. Chandler to judgment, ment of result stat- with the night drive the Hudson automobile on the ed. mother, of the accident. Mrs. Junior’s Chandler, was an “adult member” of the Appellant injured party, contends that household, subscriber’s within contem- had no plation complains under the for the reasons: following of the of the court in submitting trial That was not an additional as- 1. and in not giving peremptory this-issue he sured under the drove charge the grounds favor on permission automobile without the evidence, or the evidence was subscriber, Captain Chandler, or insufficient, to warrant the submission of household, member of subscriber’s adult support jury’s -finding issue did not come pro- therefore within response thereto. Wé overrule that con- policy covering visions of additional tention, being opinion, after careful assureds. record, study that the evidence was That the “no action clause” take that to the jury, of the sufficient issue policy provided finding binding upon shall not whose is “brought be liable suit be it was court unless the sub- below Court as It true hours before actual that a few Appellees contend that the evidence attorney into entry the trial jury’s only support the sufficient (upon denied a stated' implied permission, finding on issue knew existed all estopped deny non- hut but, any before) while sort reser complete
coverage, because it took
rights,
vation of
continued in the defense
the California
of the defense
obviously
boy,
it
whom
with full
bewildered
litigation,
throughout
obligated,
under its
to defend
facts and without
knowledge of
throughout
with
non-
the case. If
assumed to
liability or
raising any
from that
opinion draw
defense
the eve
coverage.
are of
While we
trial,
pro
coverage,
thereby
only
violated
estopped
deny
*4
definitely
policy,
visions
every
of its
canon
contend,
appellees
we need not
as
so hold as a basis
well,
decision,
good
cir
faith as
view of all the
since
for this
It
is well estab
by the
cumstances
case.
is settled
coverage
issue
the
appel
by
to lished
its course of conduct
that
implied permission
finding
the
action
of the ac-
lant
policy
“no
clause”
occasion
waived
on
drive the car
the
unconditionally bound
became
and
cident.
obligated
pay,
the
and
to the
extent of
“no
Appellant
that under the
contends
judgment
limits
the
policy it should not be
action clause” of
held liable unless suit
assured,
the additional
“brought by the
Indemnity Co. v.
Jr., American
for monies
in his own name
Subscriber
Fellbaum,
Id.,
873;
Tex.Civ.App., 225 S.W.
in sat-
actually
by
the Subscriber
paid
908,
633;
114 Tex.
263 S.W.
37 A.L.R.
that
judgment,”
final
isfaction of
and
v.
Ins. Co. Mur
Automobile Underwriters’
rah,
indemnity against
policy was
Tex.Civ.App.,
re
40
writ
S.W.2d
indemnity against lia-
and not one of
loss
bility.
fused;
Ins. Co.
Automobile Underwriters’
“the Ex-
policy provided that
1102;
Long, Tex.Civ.App., 39 S.W.2d
v.
cost, but in the
change
defend at
will
Id.,
356;
Tex.Com.App.,
Indem
63 S.W.2d
Subscriber,
of and on behalf
name
Pitts,
nity Co.
Tex.Comm.
of America v.
alleged
have been
damages
all suits
App.,
16?.
injured person
confers a benefit
injured
brought
* * *
person
who
as-
recovers a
then
may
an action
be-
coming
sured in an
action for
company,
provisions.
within its
If
subject
limitations,
to its terms and
*'
agreed
pay
injured
debt which
assured
person
to recover
owed to
the latter would
judgment.”
have
St.Cal.1919,
p. 776.
a clear
is
to enforce the
There
contract.
The record is silent as to whether
principle
obliga-
no difference
was authorized to do busi
tion
promise to
assumed
‘A
ness in the State of
but the rec
discharge
promisee’s duty creates a
thes
conclusively
ord
actually
shows
that it was
duty
promisor
bene-
creditor
doing business
compara
in that
state
Restate-,
perform
ficiary
promise.’
tively large scale when
was de
ment, Contracts,
See also note
§
livered
it to
Cali
page
A.L.R. at
where this is stat-
fornia,
if
such authorization did not
majority
rule,
ed to be the
American
estopped
exist
up
would
to set
where decisions of
courts on the
sub- its own dereliction in not obtaining au
ject are cited and reviewed.”
thority
state,
to do business in that
Marine, etc.,
v.
Sanders
Frankfort
485,
the state in
defiance
*5
Co.,
Ins.
101 law,
72 N.H.
57 A.
as a defense to this action. 24 Tex.Jur.
688,
Am.St.Rep.
the court held
that
662;
p.
Patten,
Indemnity
Millers’
Underwriters v.
injured party,
after recovering
Tex.Civ.App., 238 S.W.
affirm
against
assured, may
bring action ed, Tex.Comm.App.,
167 appellant’s m Under ninth motion, complains err that the court ed in testi holding inadmissible the mony com of Max Wier confidential as to proposition munications. The sup brief presenting was not ported by appropriate assignment er proposition page ror. The found appellant’s brief, though it was stated assignments that this germane 19, an assignments examination of dis those nothing specified closes pointing out this error, therefore, proposition if presented error, require it would not rever sal.
Appellant’s motion will be overruled. Guthrie, Dallas, Guthrie & appel-
lant. Falls, Nutt, E. Milburn of Wichita appellees. F. C. CRANE CO. v. CHAS. C. BELLAR CO. et al. YOUNG, Justice. No. 12922. Company, plaintiff below, F. Crane G. Appeals Court of Civil of Texas. Dallas. appealed has sustaining order Nov. defendants, pleas venue of certain transferring cause the entire to the District *7 Rehearing Denied Dec. County. Court of Chambers County the Dallas District Court was appellant against Company, Chas. C. Bellar Bellar, partnership composed of Chas. C. Carpenter, Jr., L. H. E. Nolte and F. residing two mentioned first Chambers County; latter County in Hardin principal being defendant Gunn, County, of Morris A. V. resident
Texas. Company, C. contractors, Chas. Bellar on 21, 1939, awarded, by February Department, job Highway State Texas generally constructing overpass County, Highway U. S. No. Dallas Greenville being the location Avenue K.M. T. Railroad tracks. Previous- ly, February the Bellar about Company accepted signed by A. Gunn detailed excavation and V. salvage general work project. undertaking and bid is referred to Gunn’s testimony equipment contract, copy rental thereof Highway Department file the State the main contract of construction. Later, February, C. F. Crane