Heyden Newport Chemical Corp., Newport Industries Division v. Southern General Ins. Co., 6670

• Decision Date: 27 February 1964
• Docket Number: No. 6670,6670
• Citation: 376 S.W.2d 821
• Parties: HEYDEN NEWPORT CHEMICAL CORPORATION, NEWPORT INDUSTRIES DIVISION v. SOUTHERN GENERAL INSURANCE COMPANY.
• Court: Texas Court of Appeals

Page 821

376 S.W.2d 821

HEYDEN NEWPORT CHEMICAL CORPORATION, NEWPORT INDUSTRIES DIVISION v. SOUTHERN GENERAL INSURANCE COMPANY.

No. 6670.

Court of Civil Appeals of Texas, Beaumont.

Feb. 27, 1964.

Rehearing Denied March 25, 1964.

Barnes & Barnes, Beaumont, for appellant.

John H. Benckenstein, Beaumont, for appellee.

STEPHENSON, Justice.

This is a suit to recover the cost of defending a prior suit. In the prior suit Heyden Newport Chemical Corporation, Newport Industries Division, hereinafter referred to as 'Newport Industries' was named as a defendant in an action brought to recover damages for the death of Sam Traylor. Raymond Pickering, also named as a defendant in such prior suit, carried an automobile liability insurance policy with the Southern General Insurance Company, hereinafter referred to as 'Southern General'. Newport Industries demanded that Southern General furnish it a defense in such prior suit claiming to be an additional insured under the omnibus provision of the policy covering Pickering. Southern General furnished Pickering a defense but refused to defend Newport Industries. Newport Industries had a policy of insurance with The Insurance Company of North America, who furnished this defense and joined Newport Industries in the present suit as a plaintiff. A jury being waived, the trial court granted judgment for Southern General.

The allegations in the prior suit were in part as follows:

'II.

'Defendant, Newport Industries, is a turpentine refining business along with other related items. The raw materials from which said turpentine and other items are refined are old pine stumps that are full of resin and are sometimes referred to as 'rich' and 'litered' stumps. The principal source or supply of said raw materials or stumps is from the pine woods of Louisiana and East Texas. The stumps are purchased from lumber companies, dynamited and removed from the ground with bulldozers, loaded by men onto trucks, and hauled to Newport Industries by means of trucks. At all material times herein, Defendant, Raymond Pickering was an agent for Newport Industries, and his job was to purchase said stumps in the field, and get the said stumps to Newport Industries at Oakdale, Louisiana. Defendant Raymond Pickering was the owner of many trucks, which were used to haul said stumps and had employees to load and haul said stumps. Defendant Arthur Marks job was to drive a truck into the forest, load it with stumps, and haul the stumps to Newport Industries in Oakdale, Louisiana.

* * *

* * *

'IV.

'Heretofore, to-wit: On or about the 16th day of February, 1961, at about 6:30 A.M., Sam Traylor, a husband and father of plaintiffs was wrongfully killed when a motor vehicle driven by defendant Arthur Marks, who was then and there in the course of his employment with defendant Raymond Picking, collided with his pick-up truck on Highway #63, approximately Seven (7) miles east of Jasper, Texas. The said collision, made the basis of this suit, was brought about by one or more of the negligent acts on the part of the said Arthur Marks as hereinafter set out with particularity * * * At the time of said collision made the basis of this suit, the driver of the vehicle, Arthur Marks, was within the scope of his employment with defendant Raymond Pickering, and at the time of said collision under the exclusive direction of defendant Raymond Pickering.'

The policy of insurance contained the following provisions:

'II. Defense, Settlement, Supplementary Payments: With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:

'(a) defend any suit against the insured alleging...