Engler v. Hatton , 2 S.W.2d 519 ( 1928 )

WILLgON, C. J.

The appeal is from a judgment against appellant F. L. Engler in favor of appellee, Ida Hatton, for $7,500 as the damages she was entitled to because of injury to her person proximately caused (a jury found) by negligence of appellant in the operation of an automobile. It appeared from the testimony heard at the trial that on . January 18, 1926, appellee, exercising due care, was walking along a public street in the city of Marshall, - when appellant, in backing his automobile across the street, knocked her down and ran over her.

Appellee’s suit was also against .the Indemnity Company of America, alleged to be “a body politic organized under the laws of a state other than Texas.” It was alleged that appellant was not a resident of this state, and that he was insolvent, but carried a policy in the sum of $10,000 issued by said indemnity company and covering such injuries as were inflicted by him on appellee, “and inuring (quoting) to the benefit of the plaintiff (appellee) or other persons who might be injured by the operation of the said car by the said defendant Engler.”

By special exceptions in its answer, the indemnity company questioned the right of appellee to join it in her suit against appellant. The court forebore ruling on the exceptions until the evidence of the parties had been adduced at the trial, when he sustained same and dismissed the indemnity company from the suit. Appellant insists the court should have ruled on the exceptions promptly when they were presented to him, and that his action in delaying such ruling until the evidence in the case was before the jury was so prejudicial to his rights as to entitle him to a reversal of the judgment. The contention is overruled. Even if the exceptions had been appellant’s, instead of the indemnity company’s, we think the court’s delay in ruling on them would not be a reason for reversing the judgment;

Another contention on this appeal (and the only other one) is with reference to questions as to the contents of the insurance policy issued by the indemnity company to appellant, propounded by appellee to one of appellant’s attorneys testifying as a witness. It appears in the record that the objections to the questions were sustained, and that the court instructed the jury not to consider same nor the matter to which they referred.

The judgment is affirmed.