Maryland Casualty Co. v. Crazy Water Co., 2232.
| Decision Date | 13 February 1942 |
| Docket Number | No. 2232.,2232. |
| Parties | MARYLAND CASUALTY CO. v. CRAZY WATER CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Palo Pinto County; Ernest Belcher, Judge.
Action by Crazy Water Company against Maryland Casualty Company, to recover for breach of obligation under insurance contract to defend against and indemnify plaintiff from certain claims for injuries. From judgment for plaintiff, defendant appeals.
Affirmed.
J. A. Gooch and Cantey, Hanger, McMahon, McKnight & Johnson, all of Fort Worth, for appellant.
W. O. Gross, of Mineral Wells, and Allen & Gambill, of Fort Worth, for appellee.
Crazy Water Company, a corporation, owner and operator of the Crazy Hotel in Mineral Wells, Texas, brought this suit against Maryland Casualty Company, a corporation, to recover upon an "Owners', Landlords' & Tenants' Public Liability Policy" of insurance for breach of an alleged obligation to defend a suit and indemnify assured for expenses and amount paid in compromise settlement of such suit; the amount claimed being $2,995.04.
Defendant answered only by general demurrer and general denial. The real and only defense was, as contended by defendant, that any obligation to defend the suit and/or indemnify loss was excepted from liability imposed by the provisions of the policy in these words "It is understood and agreed that the coverage granted under the policy of which this indorsement forms a part excludes claims due to the rendering of any professional services or the omission thereof, by the assured or employees of the assured." The general obligation subject to exceptions and qualifications, not material to the present inquiry, was "To insure said named assured [Crazy Water Company] against loss from the liability imposed by law upon the assured for damages (either direct or consequential) on account of bodily injuries; including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons not employed by the assured, while within or upon the premises described * * * [in the policy] provided such bodily injuries or death are suffered as a result of accident occurring within the term of this insurance as limited and defined in Item II of the statements hereof. * * *
"To defend * * * any claims, suits or other proceedings which may at any time be instituted against the assured on account of such injuries or death resulting therefrom, including claims, suits or other proceedings alleging such injuries or death and demanding damages therefor, although such claims, suits, proceedings, allegations and demands may be wholly groundless, false or fraudulent" etc.
The premises to which the insurance was applicable as respects the questions at issue were a "brick hotel, barber shop and baths." Mrs. Rose L. Cook, a guest of the hotel, suffered an accidental injury while proceeding to take a bath in accordance with a doctor's prescription, and while attended by employees of assured. She filed suit for damages based upon alleged negligence of assured and of its employees, the bath attendants. After notice to the insurer and disclaimer by it of any liability, the assured defended the suit and from an adverse judgment appealed the case which was reversed. See Crazy Water Co. v. Cook, Tex.Civ.App., 140 S.W.2d 878. Thereafter, the case was settled upon terms not questioned as unreasonable. Two thousand thirty-five dollars and eighty cents ($2,035.80) was paid to the claimant, the expenses incurred alleged to be $959.24, all aggregating said sum of $2,995.04, as to the reasonableness of any of which no question was made.
In a non-jury trial the court gave judgment for plaintiff for the full amount of its claim, from which defendant has appealed.
The parties seem to be in agreement in the view that the question, or at any rate one question, for decision is whether the services of a "tubber" constitute professional services within the meaning of the policy provision, excepting from the coverage of the policy "claims due to the rendering of any professional services or the omission thereof by the assured or employees of the assured."
There seems to be no contention on the part of appellant that plaintiff in operating a bath house as an adjunct to its hotel, was thereby rendering...
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