FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Petitioner, v. Jesse L. BURCH et ux., Respondents, 442 S.W.2d 331

NORVELL, Justice. On December 1,1965, Dorothy Burch was injured in a collision between the car in which she was riding and an automobile driven by Sarah Buttler, the wife of Larry Buttler. Dorothy Burch and her husband, Jesse L. Burch, sued Sarah and Larry Buttler for damages and this action has not been determined. On December 7, 1966, Jesse L. and Dorothy Burch filed this suit in the form of a declaratory judgment against Firemen’s Insurance Company of Newark, New Jersey.

The insurance company filed a cross-action and the trial court entered a declaratory judgment decreeing that: “[T]he defendant Firemen’s Insurance Company of Newark, New Jersey, is obligated by virtue of its Policy No. AFT 322361 to defend Larry J. Buttler in Cause No. 152,097 styled Dorothy M. Burch, et vir v. Sarah C. Buttler, et vir, in the 53rd Judicial District Court of Travis County, Texas, and that since Larry J. Buttler is liable for the torts of his wife, Sarah C.

Buttler, committed during their marriage, the defendant, Firemen’s Insurance Company of Newark, New Jersey, is obligated by virtue of Policy No. AFT 322361 to pay on behalf of Larry J. Buttler any judgment rendered against him in said Cause No. 152,097 to the full extent of its policy coverage, * * * ” The court also declared that the insurance company was not obligated to defend Sarah C. Buttler and was “not obligated to pay any judgment rendered against her” in the case of Burch v. Buttler. This declaratory judgment was affirmed by the Court of Civil Appeals. 426 S.W.2d 306.

The question of the insurance company’s duty to defend presented a jus-ticiable issue. No complaint is made of the trial court’s disposition of this issue and that portion of the trial court’s judgment relating thereto will not be disturbed. However, that portion of the decree which attempts to declare the liability of the insurance company upon any judgment which may hereafter be rendered in the case of Burch v. Buttler is purely advisory in nature and beyond the power and jurisdiction of the district court to render. Accordingly, such portion of the trial court’s judgment is vacated.

This court has repeatedly held that under our Constitution, the judicial power does not embrace the giving of advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933); California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965), and authorities therein cited.

Article 5, § 8 of the Texas Constitution, Vernon’s Ann.St. does not empower the district courts to render such opinions and as jurisdiction is a matter of constitutional delineation, the Legislature could not and has not by the passage of the Uniform Declaratory Judgments Act, empowered the district courts to render advisory opinions.

In 1960, this court again reiterated the principle that the giving of such opinions is not a judicial function, but that in governmental affairs, the duty to render advisory opinions is vested in the executive branch of government and that in private business, the giving of legal advice is the function of the legal profession. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). Also in the Puretex case, this court cited and quoted from Ladner v.

Siegel, 294 Pa. 368, 144 A. 274 (1928), as correctly laying down the proposition that the Declaratory Judgments Act gives the court no power to pass upon hypothetical or contingent situations, or determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication. Puretex controls this case. The parties have posed a problem which is hypothetical, “iffy” and contingent.

Firemen’s Insurance Company, as petitioner here, presents the following points of error: “The Court of Civil Appeals erred in holding that Larry Buttler was legally obligated within the terms of the insurance policy here involved to pay damages occasioned by the tort of his wife (Sarah Buttler) even though he in no way participated therein.” “The Court of Civil Appeals erred in failing to hold that in any event Larry Buttler’s legal obligation for a tort of his wife, not participated in nor aided or abetted by him, should be the amount of his interest in the community estate of the marriage subject to execution and consequently petitioner’s liability under its policy would be limited to such amount.” The contentions raised by these points present interesting questions of law as is demonstrated by the opinion of the Court of Civil Appeals.

The question posed is whether or not under the facts of this case, Larry Buttler is liable for the torts of his wife, Sarah Buttler. But, no court has yet decided whether Mrs. Buttler has committed a tort which would render her liable in damages to Mrs. Burch. That is the issue involved in the untried cause of Burch v. Buttler. At present, the question is hypothetical — “If Mrs. Buttler be held liable to Mrs.

Burch for damages in tort, is Larry Buttler to be held liable also although he did not aid or abet in the conduct of his wife, which is alleged to be tortious.” Should this question be answered, then the following “iffy” question arises. If Larry Buttler be held liable for his wife’s tort, should the liability of the petitioner insurance company be limited to the amount of his interest in the community estate of the marriage subject to execution ? Of course, if Mrs. Burch should fail to establish her case against Mrs.

Buttler, the questions raised by petitioner’s points would be purely academic and we would have had a considerable amount of judicial wheel spinning for nothing. We can well appreciate that the parties would prefer a definite answer by this court to the questions posed by petitioner’s points rather than to take an “educated guess” based upon a study of our prior decided cases and authoritative materials as to what we would hold, — as, if and when the questions are presented in justiciable form. However, the giving of advice as to proposed or possible settlements is not a judicial function.

As a practical matter if for no other reason, this must be left to the profession. In Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949), cited with approval in the Puretex case, the North Carolina Supreme Court said: “There is much misunderstanding as to the object and scope of this legislation (Uniform Declaratory Judgment Act).

Despite some notions to the contrary, it does not undertake to convert judicial tribunals into counsellors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightenment or practical guidance concerning their legal affairs. Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450; Allison v. Sharp, 209 N.C. 477, 184 S.E. 27; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Anderson on Declaratory Judgments,

section 13. This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.” Our investigation of cases from other jurisdictions further convinces us that the rules as to advisory opinions heretofore enunciated by our courts represent the sounder view. In Prashker v. United States Guarantee Company, 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871 (1956), the Court of Appeals of New York considered a question similar to that now before us.

It appears that a private plane being piloted by Nathan Prashker with Harold Weissman as a passenger crashed near Pittsburgh, Pennsylvania. Both Prashker and Weiss-man were killed. Weissman’s administratrix sued Prashker’s estate and the corporation that owned the plane. Notification was given to the insurance carrier. Liability was denied upon the ground that Prashker at the time of the plane crash was violating the regulations of the Civil Aeronautics Administration and hence the loss came within an exclusion of the policy.

Prashker’s estate and the corporate owner of the plane then sued the insurance company seeking a declaratory judgment determining that the accident was covered by the policy and that the insurance company was obligated to defend. The New York court held in a unanimous opinion written by Judge Van Voorhis that the insurance company was bound to defend the Weissman action but that the suit to declare whether or not the insurance company was liable on the policy was premature and must await the disposition of the Weissman action.

The court said: “The courts do not make mere hypothetical adjudications, where there is no presently justiciable controversy before the court, and where the existence of a ‘controversy’ is dependent upon the happening of future events. Guardian Life Ins. Co. of America v. Graves, 268 App.Div. 809, 48 N.Y.S.2d 618; Maryland Cas. Co. v. Tindall, D.C., 30 F.Supp. 949, affirmed 8 Cir., 117 F.2d 905; American Fidelity & Cas. Co. v. Service Oil Co., 4 Cir., 164 F.2d 478.

In the last-cited case, at page 480, the court said that ‘if any controversy should subsequently arise between the insured and the company as to the coverage of the policy, it can be litigated as well after the conclusion of the litigation in the state court as now.’ ” Similarly, in State Automobile & Casualty Underwriters v.

Gardiner, 189 Kan. 544, 370 P.2d 91 (1962), the insurance company urged in a declaratory judgment proceeding that it was not liable upon an insurance policy for the tort (reckless driving of a truck) of Walter James Gardiner because Gardiner was not driving the vehicle which figured in a collision with the consent of the insured, Leon Mulder. A number of suits had been filed against Gardiner and Mulder. The Kansas court pointed out that the insurance company was seeking to obtain a predetermination of at least one very cogent element in the pending tort actions.

The court said, “This is not the purpose for seeking relief by a declaratory judgment action and this court will not permit such procedure.” See also and compare: Tennessee Farmers Mutual Insurance Company v. Hammond, 200 Tenn. 106, 290 S.W.2d 860 (1956); State Farm Mutual Automobile Insurance Company v. Semple, 407 Pa. 572, 180 A.2d 925 (1962); Burns v. Hartford Acc. & Indemn. Co., 157 So.2d 84 (Fla.App.1963); Liberty Mutual Insurance Co. v. Lee, 117 F.2d 735 (5th Cir. 1941); 20 Am.Jur. 436, Courts, § 75; 21 C.J.S. Courts § 36, p. 46.

While other jurisdictions possibly having different constitutional provisions may hold differently from our present holding, we feel that the result here announced is in keeping with our previous holding in California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). In the absence of a constitutional provision authorizing the Texas courts to render advisory opinions, such power does not exist and may not be conferred by agreement of the parties. The judgments of the courts below are in part reversed.

That portion of the trial court’s judgment relating to the duty to defend is affirmed. That portion of the judgment purporting to declare the rights and obligations of the petitioner insurance company under its contract of insurance issued to Larry Buttler is vacated. Costs are adjudged equally between Jesse L. and Dorothy Burch and Firemen’s Insurance Company of Newark, New Jersey. ON MOTION FOR REHEARING . Larry Buttler and Sarah Buttler have been divorced and at the time of the rendition of judgment in this cause, May 10, 1967, Sarah was the wife of Hilton Cromier.

She will, however, be referred to herein as Sarah Buttler. . See collation of Texas cases set forth, in United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965).