237 S.W. 1109 | Tex. Comm'n App. | 1922
This suit was brought by Margaret Murray against E. Martinez, several railroad companies, and plaintiff in error, Western Indemnity Company, the latter being sued as surety of Martinez, to recover compensatory damages for the death of plaintiff’s husband, caused by the alleged negligence of Martinez and the railway companies. Deceased at the time of his death was a passenger in a jitney bus which collided with a train operated by one of defendant railway companies in the City of El Paso. Martinez was the owner of the jitney bus, which he operated under license issued by the City of El Paso. The ordinance under which this license was issued required the giving of a bond in the sum of $1,000 for each vehicle operated by the applicant.' The bond was to be payable to the mayor and his successors—
“for the use and benefit of any and all persons as his or their interests may appear who shall have a cause of action against the principal in such bond by virtue of the negligence or misconduct of said principal, or his or its agents,-' servants, or employés, in connection with the operation of any such vehicles, and which'bond shall be conditioned for the prompt payment of all damages which said principal or the surety bonding company in any civil suit, in a court of competent jurisdiction be condemned to pay on account of the injury to the person or property of any person or persons by reason»of the negligence or misconduct of the said principal, his agents, servants or employes in connection with the operation of said vehicle for which the said principal has filed an application for a license.”
The ordinance further provided that—
“Such bond shall continue as a subsisting obligation until it shall have been fully exhausted, but in no event shall the surety or sureties thereon be liable for more than the amount of such bond.”
Also that—
“Should such bond be partially or wholly exhausted by recovery or recoveries thereon, it shall thereafter be unlawful for the principal therein to continue to operate any motor bus or motor busses upon the streets, alleys or public places in the city of El Paso until the person operating said motor bus shall have first filed with the city clerk of El Paso county, Texas, a new bond in like sum as the original bond and in like manner conditioned and approved.”
Other provisions of the ordinance are not material.
On January 1, 1917, Martinez applied for a license, describing the vehicle to be used, and giving the name of the driver and the route over which the bus was to be operated, at the same time filing a bond in the penal sum of $1,000 with the Indemnity Company as surety; the bond in all respects complying with the ordinance. This is the bond sued upon in this case. Later, on May 1, 1917, Martinez made another application for license to operate the same bus over the
The only question for decision is the extent of liability of the Indemnity Company under the facts above outlined. Plaintiff contends that'the penalty of the two bonds was cumulative, and that she was entitled to recover against each surety the full amount of the penalty of its bond. The Indemnity Company on the other hand contends that $1,000, the prescribed penalty in the bond under the ordinance, represents the full amount which in any event could be recovered against the sureties upon the two bonds, and that, the Casualty Company having pa,id $900, the Indemnity Company’s liability could not exceed $100.
The question thus presented is not free from difficulty, and, so far as we have been able to determine, is .without exact parallel in the decided cases.
The contention of plaintiff in error is grounded in the main upon the proposition that the sureties in the two bonds occupied towards each other the position of cosureties, and each was required' to contribute to any sum the other might pay upon the liability so as to make their loss equal.
“The point remains to be proved that contribution is founded in contract. If a review is taken of the cases, it will appear that the bottom of contribution is a fixed principle of justice and is not founded in contract.”
A clear and succinct statement of the rule in such matters follows:
“It is universally admitted that sureties for the same debt or obligation must divide the loss between themselves, though they are liable in obligations of different dates and with different penalties, even though one bond was given without the knowledge of the sureties on the other bond. 10 Cent. Law J. 264.”
Among other authorities to the same effect might be cited: Lacy v. Rollins, 74 Tex. 566, 12 S. W. 314; Rush v. Bishop, 60 Tex. 177; Thompson v. Dekum, 32 Or. 506, 52 Pac. 517, 755; Rudolf v. Malone, 104 Wis. 470, 80 N. W. 743; Ketler v. Thompson, 13 Bush (Ky.) 287; Gilbert v. Board of Education, 45 Kan. 31, 25 Pac. 226, 23 Am. St. Rep. 700; Postmaster General v. Munger, 2 Paine, 189 (Fed. Cas. No. 11,309); U. S. v. Hoyt, 1 Blatch. 326, Fed. Cas. No. 15,409; 21 R. C. L. 948 ; 27 A. & E. Ency. of Law (2d Ed.) 483; 32 Cyc. 17; Stearns on Suretyship (2d Ed.) 263. This rule, however, does not meet the issue in the present case, since the loss recovered against the principal exceeded the combined penalties of both bonds.
“The general rule is that a bond, whether required by statute or not, is good at common law if entered into voluntarily and for a valid consideration, and if not repugnant to the letter or policy of the law.”
That each of these bonds met each of these prerequisites there can be no question.
We conclude that the judgment of the Court of Civil Appeals should be affirmed.
PER CURIAM'. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
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