Maryland Casualty Co. v. Moritz

Decision Date06 March 1940
Docket NumberNo. 8892.,8892.
PartiesMARYLAND CASUALTY CO. v. MORITZ.
CourtTexas Court of Appeals

Appeal from District Court, Travis County; J. D. Moore, Judge.

Action by James J. Moritz against the Maryland Casualty Company for attorney's fees incurred by the plaintiff in defending a damage suit against him and others. From an adverse judgment, the defendant appeals.

Affirmed.

R. H. Mercer, of San Antonio, for appellant.

Hart & Brown, of Austin, for appellee.

BAUGH, Justice.

Appeal is from a judgment in favor of Moritz against the Maryland Casualty Company for attorney's fees incurred by him in defending a damage suit against him and others. Appellee alleged that the Casualty Company was bound to pay such fees under an indemnity insurance policy carried by Moritz with that company. The suit in which the attorney's fee was incurred was by the wife and children of Rob Marshall against Moritz, doing business under the name of O. K. Freight Lines; L. O. Wells, doing business under the name of L. O. Wells Fruit & Produce Company; S. A. and Percy Neilson, also truck operators; Henry W. Klein, employee of Moritz; and Claude Berry, employee of Wells. It was for damages for the death of Rob Marshall resulting from a truck collision on State Highway No. 20, at Oak Hill, a few miles west of Austin. The insurance policy involved was one of indemnity issued to Moritz as a common carrier of freight over the highways in accordance with the provisions and requirements of Sec. 13, Art. 911b, Vernon's Ann.Civ.St. The sole question presented is whether the averments in the petition of the Marshalls were sufficient to bring the asserted cause of action against Moritz within the terms of the policy.

The policy in question covered two specifically described Chevrolet trucks, owned, used and operated by Moritz, doing business as the O. K. Freight Lines over Highway 20 between Austin and Fredericksburg. Coverage A insured Moritz against liability for damages for personal injuries; coverage B against property damage. It also provided that "Coverage granted by the policy applies to all trucks and trailers belonging to or under the direction of the named insured, whether particularly identified in the policy or not, while same are being used in the business of carrying property for hire or compensation and coming within the terms of the statutes, above referred to * * *."

In addition to binding the insurer to pay the damages included in coverages A and B, the policy also bound the insurer to "defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *."

The suit of the Marshalls was predicated upon the concurring negligence of all of the named defendants. Briefly summarized, the facts surrounding the collision were alleged to be substantially as follows: The Wells truck, a common carrier truck, driven by Berry, was returning eastward from Fredericksburg to Austin. Due to engine trouble it had been stopped on its right-hand side (the south side) of the highway on the pavement in Oak Hill, thus blocking the highway on that side. The Moritz truck, driven by Klein, and specifically covered in said policy, and the Neilson truck, owned by S. A. Neilson and driven by Percy Neilson, were also returning to Austin from the west. At Dripping Springs, a point about 30 miles west of Austin, Klein, the driver of the Moritz truck, and Percy Neilson, the driver of the Neilson truck, met and agreed between themselves that, from that point, Neilson would drive the Moritz Chevrolet truck toward Austin, followed by Klein driving the Neilson Ford truck. When Klein, so driving the Neilson truck, undertook to pass the parked Wells truck on the left in Oak Hill, he ran into Marshall's truck, wrecking it and causing Marshall's death.

We quote the following from the petition of the Marshalls:

"That on the 6th day of February, A. D. 1937, being the day of the collision causing the death of the deceased Bob Marshall, the defendants, S. A. Neilson and Percy Neilson, were owners of and jointly operated a certain 1935 Ford truck, license No. 57c/m498, and were using the same in the trucking business. That on said date shortly before the collision occurred, the said truck was being driven on the joint business of the two defendants by one of the defendant partners, to-wit: Percy Neilson. That the said defendant Percy Neilson, was driving said truck east on Highway 20 from Stonewall in Gillespie County toward Austin in Travis County. That about 15 miles west of the scene of the collision the defendant Percy Neilson, stopped his truck near the village and community of Dripping Springs in Hays County, Texas, and met and exchanged trucks with one Henry W. Klein. The said Henry W. Klein was employed by and working for the defendant, James J. Moritz, doing business as O. K. Freight Lines, his duties being to drive a truck or trucks in the hauling of freight for the defendant, James J. Moritz, in connection with said business."

"That thereupon on said day aforesaid the defendant, Percy Neilson, and the agent, servant and employee of the defendant, James J. Moritz, to-wit: Henry W. Klein, exchanged trucks by mutual agreement, and Percy Neilson proceeded to take charge of the O. K. Freight Lines...

To continue reading

Request your trial
52 cases
  • Classic Performance v. Acceptance Indem.
    • United States
    • U.S. District Court — Southern District of Texas
    • September 13, 2006
    ...Ins. Co. v. Jenkins, 358 S.W.2d 243, 244 (Tex.Civ.App. — Eastland 1962, writ ref d n.r.e.); Maryland Cas. Co. v. Moritz, 138 S.W.2d 1095, 1097-98 (Tex.Civ.App. — Austin 1940, writ ref d)); American Eagle Ins. Co. v. Nettleton, 932 S.W.2d 169, 173 (Tex. App. — El Paso 1996, writ denied). Mor......
  • Baltimore Gas and Elec. Co. v. Commercial Union Ins. Co.
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...is not material. Liability depends upon the allegations of the plaintiff's petition.' " Id. at 784 (quoting Maryland Cas. Co. v. Moritz, 138 S.W.2d 1095, 1097 (Tex.Civ.App.1940)). The court noted the " 'distinction between cases in which the merit of the claim is the issue and those where t......
  • Alea London Ltd. v. Bickford
    • United States
    • U.S. District Court — Southern District of Texas
    • June 12, 2009
    ...Ins. Co. v. Jenkins, 358 S.W.2d 243, 244 (Tex.Civ.App.-Eastland 1962, writ ref'd n.r.e.)); Maryland Cas. Co. v. Moritz, 138 S.W.2d 1095, 1097-98 (Tex.Civ.App.-Austin 1940, writ ref'd); Am. Eagle Ins. Co. v. Nettleton, 932 S.W.2d 169, 173 (Tex.App.-El Paso 1996, writ denied). Moreover, the o......
  • American Equity Ins. Co. v. Castlemane Farms, Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • September 6, 2002
    ...Ins. Co. v. Jenkins, 358 S.W.2d 243, 244 (Tex.Civ.App. — Eastland 1962, writ ref'd n.r.e.); Maryland Cas. Co. v. Moritz, 138 S.W.2d 1095, 1097-98 (Tex.Civ.App. — Austin 1940, writ ref'd)); American Eagle Ins. Co. v. Nettleton, 932 S.W.2d 169, 173 (Tex. App. — El Paso 1996, writ denied). Ind......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT