
    QUEEN INS. CO. et al. v. GALVESTON, H. & S. A. RY. CO. et al.
    (No. 8370.)
    
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 24, 1926.
    Rehearing Denied Jan. 20, 1927.)
    1. Appeal and error 172(3) — Insurer not having claimed as purchaser or assignee of insured’s rights against railroad, trial court cannot claim as such on appeal.
    Insurance companies, having claimed no rights in trial court as purchaser or assignee of insured’s rights against railroad, cannot assert rights as such in appellate court upon payment and assignment subsequent to judgment appealed from.
    2. Appeal and error <©=>219(2)— Unchallenged fact findings are binding on appeal.
    Where trial court stated fact findings, which were not attacked, they are binding on appellate court.
    3. Carriers @=88 — Carrier held to have completed delivery of cotton to insured before fire where latter had ample notice of arrival and placement for unloading.
    Carrier held to have completed delivery of cotton to insured before damage by fire where insured and his agent had actual notice of arrival and placement fpr unloading ten hours before fire and had exclusive control thereafter.
    On Motion for Rehearing.
    4. Appeal and error <©=>713(1) — Insurer claiming as insured’s assignee on appeal cannot show assignment by paper injected into transcript, but executed five months after trial court’s final action.
    Where insurer attempted to claim as as-signee of insurer’s rights against railroad in appellate court and there had been no assignment before judgment in trial court, appellate court may not look to insured’s acknowledgment of payment five months after final action by trial court, though it was injected into transcript on appeal.
    5. Insurance @=606(I) — Insurers held not entitled to subrogation to ■ insured’s rights against railroad until they made some payment on loss.
    Insurance companies held not entitled to be subrogated to insured’s rights, either under general principles of equity or insurance contract for subrogation against railroad to extent of payment, Until they had paid something on the loss.
    6. Appeal and error @=712 — Issues on appeal cannot he enlarged by citation of matters outside record.
    .Issues on appeal may.not be enlarged by mere citation as facts of matters wholly outside record.
    Error from District Court, Harris County; W. E. Monteith, Judge.
    Action by N. D. Ñaman against the Queen Insurance Company and others, with an alternative plea against the Galveston, Harrisburg & San Antonio Railway Company and another. Judgment for plaintiff against the Insurance Companies and they bring error, claiming that the railroads were liable.
    Affirmed.
    Thompson, Knight, Baker & Harris, Locke & Locke, George S. Wright, and Paul M. O’Day, all of Dallas, for plaintiffs in error.
    Boyle, Ezell & Grover, of San Antonio, and Baker, Botts, Parker & Garwood and C. J. Landram, all of Houston, for defendant in error San Antonio & A. P. Ry. Co.
    Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for defehdant in error Galveston, H. & S. A. Ry. Co.
    
      
      Writ of error refused March 16, 1927.
    
   GRAVES, J.

N. D. Ñaman, owner of 105 bales of cotton upon which the appealing insurance companies had issued their several policies of fire insurance, suffered $9,447.06 damage thereto by fire about 8 or 8:30 o’clock on tbe nigbt of June 23, 1920, 6 of tbe bales being at tbe time in tbe standard press warehouse of tbe Merchants’ Compress Company in Houston and being burnt up; tbe other 99 bales being in two freight cars standing at tbe company’s unloading wharves, or sheds, on its private industrial switch track at such standard press, and being only partially destroyed.

At Naman’s suit against tbe insurance companies on these policies with an alternative plea against tbe defendant in error railway companies — tbe Galveston H. & San Antonio and tbe Aransas Pass — for the damage to tbe 99 bales on tbe allegation that they bad failed to consummate before tbe fire a contract for- tbe shipment and delivery of this much of tbe cotton to him at such standard press, tbe court, sitting without a jury’s aid, refused bis alternative petition against tbe railway companies and gave him a recovery against tbe insurance companies on tbe policies for bis total damage, at tbe same time denying tbe reciprocal claims of tbe insurance and railway companies against each other.

In this court tbe controversy is simply one between all the insurance companies in banc on the one band and tbe two railroads in like array on tbe other as to which group should stand tbe loss from tbe fire, Ñaman having passed out of it with tbe judgment below.

The insurers, asserting no other rights than through subrogation under Ñaman, contend they are exempt solely because tbe railroads failed to complete their contract of carriage of the 99 bales with Ñaman prior to the fire, and that on two accounts they are entitled to take advantage of that fact, in that connection making these recitations in their brief:

“As tbe matter now stands in this court, the insurance companies have admitted liability to Ñaman, have paid his claim in full, and by contract as well as by operation of law have become subrogated' to all of his claims against the defendant railways arising from their failure to complete the contract of carriage.
“In the meantime they have paid Naman’s claim in full, and have received from Ñaman an assignment of his claim against the carriers.”

Tbe opposing litigants challenge' both statements in so far as they relate to tbe claimed payment and assignment as being without support in tbe record, and examination discloses that they are, there being no pleading or proof as to either; what appears is that tbe insurers denied liability to Ñaman on tbe policies at tbe trial, and judgment thereon in his favor went against them no-lens volens; having claimed no rights as such purchasers or assignees there, they cannot assert them here upon a payment and assignment that may have been made subsequent to tbe judgment appealed from, this court being bound by tbe state of tbe record as it comes to it.

So that tbe asserted subrogation is solely referable to the claimed failure of tbe railways to complete delivery of tbe 99 bales to Ñaman before tbe fire; if there was no such failure, then tbe coveted right did not arise; if there was, it might have, unless defeated by noncompliance on the insurers’ part with some indispensable condition precedent.

We think it conclusively appears from tbe record that neither of these suggested essentials was met. In tbe first place, tbe trial court, in very full conclusions of both fact and law, found that there bad been a delivery of tbe two cars containing the 99 bales by tbe railroads to Ñaman, or to tbe standard press of tbe Merchants’ Compress Company, bis agent for tbe purpose, for him, prior to tbe fire, and after most careful consideration of tbe record and statement of facts, our conclusion is that plaintiffs in error have made no successful attack upon that finding; in tbe second, tbe insurance companies bad not paid any part of tbe loss at tbe time of judgment below. While these findings determine tbe appeal, brief comment upon them may not be amiss.

As concerns tbe ¶ second one, tbe insurers affirmatively pleaded (stating tbe matter as concretely applicable here) their right to sub-rogation as being contingent on their claiming that tbe fire was caused by tbe act or neglect of tbe carriers, and on their paying tbe loss, under this provision in the policies sued on:

“If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated, to the .extent of such payment, to the rights of recovery by the insured for the loss resulting therefrom; and such rights shall be assigned to this company by the insured on receipt of such .payment.”

On tbe trial, no claim was made that the fire was caused by tbe act or neglect of tbe carrier, there was no evidence even tending to so show, no payment on tbe loss or assignment from Ñaman of bis claim had been made when judgment was entered, and plaintiffs in error through their attorneys expressly disclaimed any right of recovery against tbe railway companies by virtue of this quoted provision; the trial court stated fact findings to this effect, none of which have been attacked here, wherefore they are binding upon this court.

In no event, as we apprehend, whether under tbe provisions'of their contracts of insurance or under tbe general principles of equity, would tbe insurance companies be entitled to be put in Naman’s shoes until they bad paid something on the loss — and then only .pro tanto — and being thus here- shown to have paid nothing at all, they acquired no such right, even were it conceded that the carriers had not delivered the cotton before the Ore. Recurrence is now taken to that feature.

The contract of carriage of the 99 bales between Ñaman and the railway companies was simply a switching movement from one of the presses of the Merchants’ Compress Company to another, that is, from its new press to its standard press, both within the city of Houston, the former being located on the Galveston, Harrisburg & San Antonio Railway, the latter on the Aransas Pass; the Galveston, Harrisburg &■ San Antonio on June 21, 1920, issued to Ñaman its two straight, open bills of lading of the uniform type for the cars, delivered them to its connecting carrier, the Aransas Pass, and the latter at 10 a. m. on June 23, 1920, spotted and placed them for unloading on the private industrial siding of the compress company at its standard press, alongside one of its unloading platforms, that being the destination named in the bills of lading; the Merchants’ Compress Company was Naman’s plenary agent in the matter, and its standard press, the destination plant, had at the time of the shipment on June 21, 1920, received advance notice by car number, initials, number of bales in each ear, and the name of the shipper and consignee that these two cars had been loaded there and were en route from the new press to the standard press; Ñaman and the compress company also actually knew that the cars had been so spotted and placed for unloading, from and after that time had exclusive custody of and control over the cotton, inclusive of the right to at any moment remove it from cars, and failed to do so before the fire about 8:30 o’clock that night.

This résumé is but a restatement of the trial court’s fact findings, and in no particular is it shown that any of them were not supported by the evidence. In view of them, especially those to the eff&ct that Ñaman and his agent, the compress company, had actual notice of the arrival and placement for unloading of the two car’s at the standard press at 10 a. m. on June 23, and exclusive control of them thereafter until the fire some ten hours later, this court deems the further and consequential finding that delivery of them by the carriers had been completed before that event inevitable; for this reason it is not thought necessary to go into the finely drawn distinctions of counsel with reference to various provisions in the bills of lading.

These conclusions require an affirmance of the judgment; that order has been entered.

Affirmed.

On Motion for Rehearing.

In their motion for rehearing plaintiffs in error attack our finding that the record of the trial below failed to show that they, had, prior to judgment there, admitted liability to Ñaman on the policies sued upon, had paid his claim in full, and had received from him an assignment of his claim against the carriers, citing pages 134, 135, of the transcript on file in this court as showing the contrary; the instrument thus appearing in the transcript purports to be an acknowledgment of such a payment and transfer executed on April 17, 1922, whereas the judgment in this cause was rendered in the trial court on October 18, 1921, and motion for new trial overruled thereon November 12, 1921. Obviously, in such circumstances, this court may not look to the paper thus injected more than five months after final action by the trial court into the transcript upon the appeal as properly reflecting any part of the proceedings below.

In this same connection it is further insisted that we erted in holding that the insurance companies, not having paid any part of Naman’s loss at the time of judgment in the trial court, were not entitled to be then actually put into his shoes as concerned the two railroads on their subrogation claim, for the reason that, notwithstanding they had not then so paid, they were entitled to a conditional decree of subrogation against the carriers, effective whenever they might thereafter file with the clerk of the trial court proper evidence of payment on their part of Naman’s recovery against them.

No such case was either adversely acted upon below or properly presented for reconsideration here; as our original opinion recites, they stood there until final judgment upon their denial of any liability to and refusal to pay Ñaman anything, and when the trial court, on a finding from the uncontro-verted evidence that they had not up to that time paid him anything, denied generally their subrogation claims against the railways, they simply appealed the case as so made to this court, merely conplaining to that court of such denial upon the ground thus stated in their motion for new trial:

“Eor that each of the said insurance companies was shown to be entitled, upon payment, to subrogation to the rights of the plaintiff N. D. Ñaman against the said railway companies.”

The italics are our own, emphasizing the correctness of our former conclusion that they • did ground their right to subrogation upon their first paying the loss.

It goes without saying that the issues upon appeal may not be enlarged by the mere citation as facts of matters wholly dehors the record.

In any event, however, the question of an equitable assignment becomes immaterial under our other conclusion that the railway companies had completed their contract of carriage.

The motion for rehearing has been given careful consideration, but under the view that our former disposition of the cause was correct, it has been overruled.

Overruled. 
      <g=5>For other oases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes
     