County Gas Co. v. General Accident, F. & L. Assur. Corp.

• Decision Date: 26 January 1933
• Docket Number: No. 2781.,2781.
• Citation: 56 S.W.2d 1088
• Parties: COUNTY GAS CO. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.
• Court: Texas Court of Appeals

56 S.W.2d 1088

COUNTY GAS CO. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

No. 2781.

Court of Civil Appeals of Texas. El Paso.

January 26, 1933.

Rehearing Denied February 16, 1933.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by the County Gas Company against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. From judgment dismissing plaintiff's amended petition on demurrer, plaintiff appeals.

Affirmed.

Roy C. Coffee, Karl F. Griffith, and Marshall Newcomb, all of Dallas, for appellant.

Robert B. Holland and Touchstone, Wight, Gormley & Price, all of Dallas, for appellee.

PELPHREY, Chief Justice.

On or about September 17, 1929, K. L. Johnson was engaged in reading gas meters for appellant and while so engaged went upon the premises of one James M. Boyd, in Dallas county, Tex., for the purpose of reading the gas meter located on said premises. Johnson, on account of his conduct, was ordered off the premises by Boyd, and to prevent his entry into the garage, Boyd placed himself in the doorway. Thereupon Johnson struck Boyd with a metal bound book, furnished him by appellant, injuring him. Thereafter Boyd instituted suit against appellant, and on June 11, 1931, an agreed judgment was rendered against appellant for $450 and costs of suit.

At the time the assault was committed, appellant had a public liability insurance policy with appellee. The policy contained the following provisions:

"(1) To indemnify the assured named in Statement No. 1 of the Declarations forming part hereof against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered through the Assured's negligence while this policy is in force by any person or persons not employed by the assured while at or about the places designated in such Declarations, or elsewhere, by reason of the prosecution by the assured of the work described in the said Declarations and in and during the continuance of said work."

"(2) To defend in the name and on behalf of the Assured any suits, even if groundless, brought against the Assured to recover damages on account of such happenings as are provided for by the terms of the preceding paragraph."

"(3) To Pay, irrespective of the limits of liability expressed in Condition O hereof, all costs taxed against the Assured in any legal proceeding defended by the Corporation, all interest accruing after entry of judgment upon such part thereof as shall not be in excess of said liability and the expense incurred by the Assured for such immediate medical or surgical relief as is imperative at the time of the accident, together with all the expense incurred by the corporation growing out of the investigation of such an accident, the adjudgment of any claim or the defense of any suit resulting therefrom."

Appellant gave appellee notice of the claim of Boyd against it and requested that appellee defend the suit. This appellee refused to do.

After the agreed judgment had been rendered, appellant filed this suit seeking to recover from appellee the $450 paid to Boyd, $100 attorney's fees in the Boyd suit, $20.55 costs therein, and $200 attorney's fees and costs incurred in filing and prosecuting the present suit.

The trial court sustained a general demurrer to appellant's original petition. Appellant was granted leave to amend and filed his first amended original petition, which is included in the transcript here filed. Appellee answered by general and special demurrers and general denial. Upon hearing, the general demurrer to the amended petition was also sustained, and appellant refusing to amend further, his cause of action was dismissed. This appeal is from that action of the trial court.

Opinion.

Appellant's brief contains two propositions as follows:

"Proposition No. I. The defendant insurance company having contracted with plaintiff gas company to indemnify it against loss by reason of the liability imposed by law upon the gas company for damages on account of bodily injuries accidentally suffered by any person or persons not employed by the gas company on account of the prosecution by the gas company of its business of distributing and selling natural gas to the public, and the gas company having alleged in its petition in this case facts showing that it had been...