Maryland Casualty Co. v. Moritz
Decision Date | 06 March 1940 |
Docket Number | No. 8892.,8892. |
Parties | MARYLAND CASUALTY CO. v. MORITZ. |
Court | Texas 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.
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:
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