Opinion
No. 4027.
May 12, 1931. Rehearing Denied May 21, 1931.
Appeal from District Court, Hopkins County; L. L. Bowman, Judge.
Suit by the Jagoe Construction Company against the United States Fidelity Guaranty Company and others. From an order dissolving a temporary writ of injunction granted to plaintiff, plaintiff appeals.
Affirmed.
The appeal is from an order of the district court of Hopkins county dissolving a temporary writ of injunction (made returnable to said court) granted to the appellant construction company by the judge of a district court of Tarrant county, restraining the appellee fidelity and guaranty company and appellee J. R. Wright, sheriff of said Tarrant county, from levying an execution on property belonging to said construction company. The execution was issued out of said Hopkins county district court on a judgment rendered by this court on a supersedeas bond made by the construction company in the prosecution of an appeal from a judgment of said Hopkins county district court against it in favor of one Harrison. The action of the court in dissolving the injunction was based entirely on the pleadings of the parties. In the construction company's petition it was alleged that the Southern Casualty Company on June 6, 1927, issued "its certain policy of public liability insurance," whereby it bound itself for one year from that date to protect the construction company "against (quoting) any and all claims for personal injuries alleged to have been received by any party as a result of the negligence of plaintiff (the construction company) its agents, servants and employes, and to defend at its own cost and expense, all actions brought against plaintiff on account of such personal injuries, whether groundless or not, and to pay off any and all judgments rendered against plaintiff within the limits of $10,000.00 for one single accident and injury to any one person, and $20,000.00 for one single accident and injury to more than one person"; that on August 28, 1929, said district court of Hopkins county rendered a judgment for $5,000 against the construction company in favor of one Harrison, in the latter's suit against the former for injury received by him February 12, 1928, as the result of negligence on the part of said construction company; that when said suit resulting in said judgment was commenced, said Southern Casualty Company entered "its appearance (quoting) in said cause, through its attorneys, and took charge of and control of said litigation for and on behalf and in the name of plaintiff as it was required so to do in accordance with its obligations provided in its said policy aforesaid, and presumed to defend the same in accordance with the terms of its policy"; that the fidelity and guaranty company "had (quoting) some sort of arrangement with said Southern Casualty Company for the making of all supersedeas bonds for said Southern Casualty Company, upon obligations imposed upon it in virtue of its defense of any suit brought against one of its assured under its liability policies," and as a surety, when the motion for a new trial in said cause was overruled, executed such a bond, payable to said Harrison, "in the sum of $11,000.00 conditioned as the law required"; that while the construction company also executed said bond as the principal therein, "in truth and in fact (quoting) the Southern Casualty Company was the principal on, said bond, and by reason of the contract between plaintiff and said Southern Casualty Company, it was then directly obligated to pay said judgment"; that the fidelity and guaranty company knew the casualty company was so obligated and "made (quoting) said bond relying upon the financial responsibility of said Southern Casualty Company and not plaintiff, and under the circumstances plaintiff says it is at this time estopped to claim that plaintiff was the principal in said supersedeas bond"; that after the filing of said supersedeas bond, "the (quoting) said Southern Casualty Company appealed said judgment to the Court of Civil Appeals, which court thereafter affirmed the judgment; and mandate having issued to the District Court of Hopkins County, Texas, the said United States Fidelity Guaranty Company thereupon paid the judgment"; that the fidelity and guaranty company had procured the issuance of an execution out of said district court of Hopkins county and was attempting to levy same on plaintiff's property "to secure reimbursement for the amount paid by it to the said Herschel Harrison, being the sum of $5,000.00, interest and costs"; that the construction company had "no (quoting) adequate legal remedy against the wrongful issuance of said execution, because, it shows, that the Southern Casualty Company, who was and is obligated under its policy to pay said judgment, is insolvent, and that a receiver has been appointed to take over all of the assets and wind up the affairs of said company"; and that "the levy of the writ of execution now in the hands of the sheriff of Tarrant County, Texas, would cause the plaintiff irreparable damage" in ways specified. The prayer of the petition was that the fidelity and guaranty company and the sheriff "be enjoined and restrained from levying said writ of execution or proceeding further under the same, and that said United States Fidelity Guaranty Company may be enjoined and restrained from issuing or causing to be issued any further executions on said judgment, if any it has; * * * that upon a final hearing the said judgment and any rights that the said United States Fidelity Guaranty Company may apparently have by reason thereof against this plaintiff be cancelled, annulled and held for naught, and that said company be perpetually enjoined from further action therein against this plaintiff; and plaintiff prays for general relief." In its motion to dissolve the injunction, the fidelity and guaranty company questioned the existence of power in the Tarrant county district court to grant the writ, and if it had such power the sufficiency of the prayer in appellant's petition to invoke it, denied the truth of the allegations in the construction company's petition, challenged the sufficiency of such allegations, if true, to show the construction company to be entitled to the relief it sought, alleged that the construction company was the appellant and principal in the supersedeas appeal bond and was estopped from denying the fact, and that it (the fidelity and guaranty company) was a surety on said bond and liable only as such.
Burgess, Burgess, Chrestman Brundidge, of Dallas, and Sullivan, Speer Minor, of Denton, for appellant.
Seay, Seay, Malone Lipscomb, of Dallas, and C. O. James, of Sulphur Springs, for appellees.
The contention of appellant that, as between it and the appellee fidelity and guaranty company, the casualty company was the principal in the supersedeas appeal bond, notwithstanding it (appellant) executed the bond as principal and the casualty company did not execute same at all, is on the theory that the casualty company, by assuming charge of and conducting the defense of the Harrison suit as required by its contract with appellant, became a party to that suit, taking appellant's place as the defendant therein in the district court and its place as appellant on the appeal to this court.
That being true, it was alleged, and the fidelity and guaranty company being chargeable with knowledge of the fact, it was alleged, further, it is argued that the fidelity company should not be treated as the surety of appellant on the supersedeas bond, but should be treated, instead, as the surety of the casualty company, and be required to look to that company instead of to appellant for reimbursement of the sum it was bound to pay as such surety. In that view of the case appellant insists it was entitled to the injunctive relief granted to it by the Tarrant county district court, and that the Hopkins county district court therefore erred when it determined to the contrary and dissolved the injunction.
We do not think there is merit in the contention. If it should be conceded that the holding of the Supreme Court in American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 37 A.L.R. 633, warranted the conclusion that the casualty company by taking charge of the defense of the Harrison suit became a party thereto and as such a party incurred liability to appellant, it would not follow that appellant who, alone, executed the supersedeas bond as the principal therein, was not liable as such to the fidelity and guaranty company as the surety therein. Clearly on the face of the bond it was so liable, but if it was not we think it sufficiently appeared in the pleadings that it was estopped from asserting to the contrary.
The fact alleged, that the bond was executed by the fidelity and guaranty company at the request of the casualty company and not at appellant's request, is of no importance, we think. Under the terms of the contract between the casualty company and appellant, the former was authorized to act for the latter in making such a request; or, if it was not, certainly appellant, when it executed the bond and by force of it obtained by appeal a review of the judgment against it, ratified the assumption of such authority by the casualty company and was estopped to deny it was the principal in the bond and liable as such, not only to the obligees in the bond, but to the fidelity and guaranty company as its surety, as well.
While we think the action of the trial court in dissolving the injunction granted by the Tarrant county district court was justifiable on the theory that appellant in its petition did not pray for the temporary injunction granted to it (City of Jacksonville v. Devereux [Tex. Civ. App.] 286 S.W. 572), and perhaps on other grounds than the one discussed, as well, we are satisfied to rest the affirmance of the judgment on the conclusion reached that it appeared appellant was not in any event entitled to the relief it sought.
The judgment is affirmed.