(concurring).
It is my opinion that the receiver had the right to question the Dallas County judgment without the aid of Sec. 3(e), Art. 21.28 of the Insurance Code, V.A.T.S.
The receiver was not a party to the Dallas suit. He was a stranger to such action insofar as he represents the creditors of General American, except perhaps creditor Davis. A stranger to a judgment may collaterally attack it. He may assail the judgment on any ground which a party thereto could urge on direct attack. Sec. 251, Vol. 25, Tex.Jur. (Judgments).
Is the Dallas County judgment vulnerable ? In my opinion it is about as erroneous as a judgment could possibly be insofar as it adjudged General American to be primarily liable to Torrence Davis for any amount in excess of $10,000, the amount of the insurance it carried for Nash.
Appellant states that his Dallas County suit against General American was based on the Kansas judgment against Nash and the
“ * * * negligence and bad faith on the part of General American Casualty Company in failing to properly defend said suit as it was obligated to do by a policy of insurance issued by Alamo Casualty Company to Carl Nash, d/b/a Nash Produce Company, which policy had been assumed by the General American Casualty Company, and negligence and bad faith on the part of General American Casualty Company in failing and refusing to settle Tor-rence’s claim against Carl Nash for the sum of $9,500.00, such offer having been made by plaintiff Torrence Davis prior to judgment in said cause.”
When inquiry was made of appellant’s counsel on oral submission of this case how Davis could complain of . General American’s negligent failure to defend Nash which inured to the benefit of Davis, reference was made to the doctrine of the Stow-ers case. Stowers Furniture Co. v. American Indemnity Co., Tex.Com.App., 1929, 15 S.W.2d 544. This case, of course, does not furnish any authority for the Dallas judgment. There the insured sued its insurer to recover the amount of the judgment against it and which it had paid to the injured party, the judgment being in excess of the policy limit, on the ground of negligence of the insurer in not properly defending the suit which defense it undertook under the terms of the insurance policy.
Here Davis obtained a judgment for $52,551.61 against Nash which, he states, but for General American’s negligence would have been only for $9,500.
Now if Nash had paid the Davis judgment and was suing General American the Stowers case would be applicable. It is conceded here that neither Nash nor General American has paid the judgment.
In my opinion it would have been a fraud on the other creditors of General American for this judgment to have been approved in any amount above the amount of the insurance policy.