Pan Am. Ins. Co. v. White, 15456
| Decision Date | 06 February 1959 |
| Docket Number | No. 15456,15456 |
| Parties | PAN AMERICAN INSURANCE COMPANY, Appellant, v. James E. O. WHITE, d/b/a Blue Flame Gas Company, Appellee. |
| Court | Texas Court of Appeals |
Thompson, Coe & Cousins, Dallas, for appellant.
Frank Cusack, Dallas, for appellee.
This is a venue case; to the pending suit, Cause No. 33754-G, defendant interposing by plea of privilege a right to be sued in the place of its corporate residence--Harris County.
The controverting affidavit of insured plaintiff claimed applicability of subdivisions 23 and 28, Article 1995, Vernon's Ann.Civ.St.; asserting that this cause of action arises out of a written policy of insurance, No. 6AC 74761, issued to him by defendant under terms of which it was obligated to defend plaintiff in any suit, whether groundless or not, growing out of operation of plaintiff's butane and propane retail gas service; that defendant had refused and neglected to defend cause No. 25949, styled Willie Parnell, et al., v. Blue Flame Gas Company, for damages in the amount of $202,000.00 perforce of alleged negligent operation by plaintiff of his retail gas service; the instant suit being for attorney's fees for 1,000 incurred in defending said suit, as is more fully set forth in original petition incorporated in said controverting affidavit for all purposes. By way of trial amendment plaintiff was permitted to interline in said controverting affidavit the fact of an additional policy No. 6MCL 10361, placing in evidence such policy of insurance. On pretrial of cause No. 25949 plaintiff was dismissed as a party defendant to that suit. Appellant had refused to defend suit on behalf of appellee because, in its opinion, it had no policy of insurance affording coverage to appellee in event a judgment had been taken against him in said Parnell cause of action as alleged. On hearing, the plea of privilege was overruled with timely appeal by the insurance company.
Policy No. 6AC 74761, above, headed 'Combination Automobile', recited as coverages 'A-Bodily Injury Liability: to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile' 'B--Property Damage Liability: to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile'. And under 'conditions' paragraph 25 'purpose of use', Section (c), 'use of the automobile for the purpose stated includes the loading or unloading thereof'. Attached thereto was Form 77 'Motor Vehicle Endorsement' prescribed by the Texas Railroad Commission providing in part 'it is understood that the policy to which this endorsement is attached is to be offered for filing by the above named insured with the Railroad Commission of Texas * * * (b) as a condition precedent to the privilege to operate as a Liquefied Petroleum Gas Licensee within the State of Texas under the authority of a permit or license heretofore issued, or which may hereafter be issued, and in compliance with the provisions of Article 6053, Revised Statutes of Texas and Amendments thereto * * * and this endorsement is attached for the purpose of making the provisions of the policy conform with the requirements of said laws * * * the obligations and promises of this endorsement shall be effective only while the automobile covered by this policy are being operated within the boundaries of the State of Texas * * * this endorsement covers all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or diseases, including death, at any time resulting therefrom, sustained by any person other than the insured or his employees, and injury to or destruction of property, other than the property of the named insured occurring during the term of said policy through such operation of such trucks and trailers within the boundaries of the State of Texas.'
Policy No. 6MCL 10361, headed 'Manufacturers' and Contractors' Liability' contained bodily injury and property liability provisions similar to A and B of the combination Automobile Policy, but only for 'premises operation'; under the latter head reciting 'liquefied petroleum gas distribution-including installation, servicing and repair of liquefied petroleum gas systems, piping and customers' equipment with or without filling of containers * * *.' No Railroad Commission Endorsement was attached to this policy.
Article 6053, Section 11, first requires a $2,000 surety bond of all licensees, not material here; providing further as follows: 'In addition to the bond herein required, such licensee shall be required to procure from some reliable insurance carrier qualified to do business in this state, and keep same in force so long as they shall continue in business, insurance coverage as follows:
'(1) Automobile bodily injury and property damage insurance coverages on each and every motor vehicle, including trailers and semi-trailers, used in the transportation of liquefied petroleum gases, in an amount of not less than Five Thousand ($5,000.00) Dollars for bodily injuries sustained by any one person in any one accident and not less than Ten Thousand ($10,000.00) Dollars for bodily injuries sustained by two or more persons in any one accident, and not less than Five Thousand ($5,000.00) Dollars total property damage for any one accident.
'(2) Manufacturers and Contractors liability policy in an amount of not less than Five Thousand ($5,000.00) Dollars for bodily injuries sustained by any one person in any one accident and not less than Ten Thousand ($10,000.00) Dollars for bodily injuries sustained by two or more persons in any one accident, and not less than Five Thousand ($5,000.00) Dollars total property damage for any one accident.
Appellant's single point complains of the Court's error in overruling his plea of privilege, 'where appellee, plaintiff in the trial court, wholly failed to establish the...
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