
    QUEEN INS. CO. et al. v. GALVESTON, H. & S. A. RY. CO. et al.
    (No. 1069-4801.)
    Commission of Appeals of Texas, Section A.
    March 7, 1928.
    Insurance <⅜=>606(I) — Insurer permitting judgment against insured in favor of railroad to become final cannot recover from railroad on subrogation theory.
    • Where owner of property sued railroad, and insurer for injury to goods in transit, insurer’s permitting judgment finding railroad not liable to insured to become final in consequence of lack of appeal precluded insurer’s recovering from railroad on subrogation theory.
    Error to Court of Civil Appeals of Eirst Supreme Judicial District.
    On rehearing. Judgment of Court of Civil Appeals affirmed.
    For former opinion, see 296 S. W. 484.
    Thompson, Knight, Baker & Harris, Locke, Locke, Stroud & Randolph, Geo. S. Wright, and Ralph Randolph, all of Dallas, for plaintiffs in error.
    Boyle, Ezell & Grover, of San Antonio, and Baker, Botts, Parker & Garwood, of Houston, for defendants in error.
   NICKELS, J.

Some history of the case is shown in the opinion of the Court of Civil Appeals, 290 S. W. 286. Writ of error was allowed the insurance companies; thereupon the ease was submitted to Commission of Appeals, Section B,- and that body recommended affirmance. Thereupon the judgment was affirmed. 296 S. W. 484. Motion for rehearing was filed by the insurance companies. All previous orders were revoked by the Supreme Court, and the case was referred to this section of the commission.

We believe right disposition was given the case by the Court of Civil Appeals — as previously held by the Commission, Section B — and the reasons which impel that belief will toe stated.

The insured brought suit upon his policies against the insurance companies and, alternatively, against the railroad companies upon their carrier liabilities of safe delivery, etc. The insurance companies defended against the insurer and became actors against the railroad companies seeking judgment over for whatever amounts the insured might recover — this upon conventional pubrogation (within terms of the policies) as, also, upon that subrogation which arises per law and equity on facts.

Judgment was rendered (a) for the insured against the insurers for the amounts of the policies, etc.; (b) for the railroad companies against insured and insurers. The insured did not appeal; nor did the insurers bring or attempt to bring1 up on appeal the ease as intimate to the insured and the railroad companies in the name or right of the insured, or otherwise than indirectly and upon their asserted rights of subrogation. In the transcript are included papers, executed after rendition of the judgment, showing that the insurance companies satisfied the judgment and took assignment of rights (against the railroad companies) from the insured.

The judgment as between the insured and the railroad companies, in consequence of lack of appeal, became and remains final. In it, and within the issues made by the pleadings, there is adjudication against any right in the insured at any time against those companies.

Existence (despite final judgment to the contrary) of a right in the insured is the presupposition of the insurers’ claims, for sub-rogation without a subject-matter (or a claim to succession to nonexistent rights of another) would be a most curious thing. The insurance companies, so far as we can perceive (in this record), have to recover, if at'all, in the right of the insured (Spring Garden Ins. Co. v. I. & G. N. Ry. Co. [Tex. Civ. App.] 131 S. W. 1147, 1151, 1152; 26 C. J. 457) and as noted, there is final adjudication against subject-matter for the subrogative assignment. We do not have a case of liquidation of policies and subsequent suit by the insurer against third persons causing the loss (as in Houston Direct Navigation Co. v. Insurance Company of North America [Tex. Civ. App.] 31 S. W. 560, or in Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 464, 9 S. Ct. 480, 32 L. Ed. 800), or of suit brought in behalf of the insurer but in name of the insured, or yet that of a recovery against one of two or more joint tort-feasors or defendants in privity of contract (from the standpoint of the obligee or inter sese), as in Texas, etc., Ry. Co. v. Eastin, 100 Tex. 556, 102 S. W. 105. But the ■ case which we do have is one wherein a defendant (after contest) has been held liable to the plaintiff (who suffers a judgment in favor of the other defendant to become final) and wherein the losing defendant now seeks to hold his codefendant on the mere (find non-allowable) assumption that in truth (despite that part of the judgment which has become final) that codefendant ought indemnify the plaintiff.

Hartford Fire Ins. Co. v. Triplett (Tex. Civ. App.) 223 S. W. 305, is a case wherein the insured sought recovery against the insurer and against a carrier (for negligence), with a plea for judgment over by the insurer, and wherein recovery was given against the in-* surer and denied against the railroad company. The judgment was rendered upon a verdict instructed in behalf of the insured as against the insurer, and in behalf of the railroad company as against the insured and insurer. All original parties were parties on appeal, and in that situation the cause was remanded so as to allow, inter alia, the insurer the opportunity to prove, if it could, (and to have the jury pass upon the question of) the railroad company’s negligence. As is manifest, the matter of the rights of all parties was kept open by the appeal in that case, whereas here only supposed rights and obligations as between the insurer and third party (claimed to have caused the loss) were brought up.

In our opinion, there is no relief grantable, even though it be true that liability in behalf of the insured and. against the railway companies ought have beén established.. Because of that view we have not considered the questions attempted to be raised about the carrier’s responsibility to the property owner.

Accordingly, we recommend affirmance of the judgment of the Court of Civil Appeals.

CURETON, C. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals. 
      ®s»Por other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
     