Travelers Ins. Co. v. Reed Co.

• Decision Date: 21 December 1939
• Docket Number: No. 3562.,3562.
• Citation: 135 S.W.2d 611
• Parties: TRAVELERS INS. CO. v. REED CO.
• Court: Texas Court of Appeals

135 S.W.2d 611

TRAVELERS INS. CO. v. REED CO.

No. 3562.

Court of Civil Appeals of Texas. Beaumont.

December 21, 1939.

Rehearing Denied January 10, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Suit by the Reed Company against the Travelers Insurance Company, to recover the amount of a judgment which the plaintiff had been forced to pay, and the amount of attorney's fees, on ground that the defendant had wrongfully refused to defend an action against the plaintiff, as required by a public liability policy issued to the plaintiff by the defendant. From an adverse judgment, the defendant appeals.

Judgment reversed in part and rendered, reversed in part and remanded, and affirmed in part.

Pipkin & Pipkin, of Beaumont, for appellant.

Lamar Cecil, of Beaumont, for appellee.

WALKER, Chief Justice.

J. J. Brown v. The Reed Company, No. 51603 on the docket of the district court of Jefferson county, was an action by Brown, plaintiff, to recover damages against The Reed Company, defendant, on the following allegations:

"That prior to January 11, 1936, plaintiff contracted to purchase and did purchase of the defendant herein an electric refrigerator, known as a Frigidaire, paying a portion of the purchase price therefor in cash and obligating himself to pay the balance of the purchase price in installments; that by reason of misfortune and business reverses which were beyond his control, plaintiff failed and was unable to pay defendant certain of the installments for said Frigidaire as they matured; that after insistent demand by defendant for the payment of such past due installments plaintiff called at defendant's office and there related to the defendant the reasons for his inability to make prompt payment and said defendant agreed with plaintiff to grant to him and it did so grant to him additional time within which such installment payments could be made.

"Third: That after defendant agreed with plaintiff to grant him additional time within which to make such past due installment payments as aforesaid and prior to the expiration of the time agreed upon between them and on or about, to-wit, the 11th day of January, 1936, one J. K. Bunch, the duly authorized agent, servant, and employee of defendant, acting within the scope of his employment came to the home of plaintiff while plaintiff was absent from his home and asked plaintiff's wife if he could see this plaintiff; that plaintiff's wife stated to said Bunch that plaintiff was not at home but that he had been gone only about 10 minutes and that he, Bunch, could overtake him if he desired to see him. Plaintiff further alleges that the said J. K. Bunch, declined to endeavor to overtake plaintiff and stated to plaintiff's wife in a loud and vociferous manner that he had come to collect money on the note for the Frigidaire and money he was going to have; that said Bunch, continuing the use of loud and vociferous language, stated to plaintiff's wife that he was not going to wait another day for payment on the note and when plaintiff's wife stated to him that plaintiff had told her that he had made arrangements with defendant for an extension of time of payment on the note, he, the said Bunch, stated that plaintiff was lying and had made no such arrangement and that he, the said Bunch, was going to take the Frigidaire, put it on a block, sell it for $50.00 and sue the plaintiff for the rest and would take plaintiff's house and furniture in payment of whatever balance was due after he had sold the Frigidaire; that said Bunch thereafter in the same loud and vociferous manner threatened plaintiff's wife with law suits and the loss of her said home and furniture, and demanded payment on said note in a threatening manner and although repeatedly requested by plaintiff's said wife to leave her home, he refused to do so for a considerable period of time during all of which he continued to threaten her as aforesaid by the use of loud and vociferous language and thereafter upon leaving he yelled to plaintiff's said wife that her husband, the plaintiff herein, had better come to his, Bunch's office not later than the coming Monday or they would lose not only their Frigidaire but their home and furniture as well.

"Fourth: That the aforesaid transactions between plaintiff's said wife and Bunch, the agent, servant, and employee of defendant who was acting within the scope of his employment took place in plaintiff's private residence within the hearing of his children and a stranger and by reason thereof his said wife was terror striken, humiliated and disgraced and put in fear of bodily harm, thus causing her to suffer great fear and anguish of body and mind and because thereof she suffered a severe nervous shock and great pain of body and mind, and at the time of the occurrence aforesaid plaintiff's said wife was known by said Bunch to be pregnant and with child, or by the use of ordinary care such fact could and should have been known by him; that throughout the course of the transactions hereinabove related, plaintiff's said wife was in an extremely nervous condition by reason of the status of her health and the conduct of said Bunch, and by reason of such conduct and of said threats and because of the violent and cruel treatment on the part of said Bunch and his use of loud and vociferous language as aforesaid she became very frightened by reason of his acts and behavior and became very suddenly ill, suffering from nervous agitation and had a complete nervous breakdown to the extent that it was necessary for her children to put her to bed, where she remained until the 17th day of January, 1936, at which time she had a miscarriage, giving premature birth to her child. Plaintiff alleges that said Bunch knew, or by the use of ordinary care could and should have known that his acts and conduct would greatly frighten plaintiff's said wife and cause a severe shock of her nervous system and that such acts and conduct on the part of the said Bunch wounded the feelings of plaintiff's wife and caused her great physical pain and mental anguish and suffering. * * * And plaintiff further alleges that the defendant's agent, servant and employee, Bunch, then and there acting in the course of his employment with the defendant and in the furtherance of the said defendant's business was guilty of the following acts of negligence, each and all of which either jointly or separately were a proximate cause of the above and foregoing enumerated damages, harms, and injuries sustained by plaintiff's wife:

"(a) In going upon the plaintiff's property and entering his private residence and while there using loud and vociferous language.

"(b) In addressing plaintiff's wife in a loud tone of voice.

"(c) In addressing plaintiff's wife in a loud and vociferous language.

"(d) In failing to observe the pregnant condition of plaintiff's wife at the time and place in question.

"(e) In failing to leave plaintiff's premises when plaintiff's wife's agitated condition became apparent to him.

"(f) In continuing his use of loud and vociferous language after it became apparent to him that same was adversely affecting the state of mind of plaintiff's wife.

"(g) In failing to address plaintiff's wife and make his demands of her in a calm, gentlemanly tone of voice.

"(h) In threatening plaintiff's wife with lawsuits.

"(i) In threatening to seize by process of law or otherwise plaintiff's home and furniture.

"Plaintiff further says that while no specific intent on the part of defendant's agent, servant and employee, Bunch, to harm or injure plaintiff's wife is alleged, yet said agent, servant and employee knew that plaintiff's wife was a married woman and knew or should have known in the exercise of ordinary care that she might possibly have been pregnant and knew or should have known that any unseemly conduct on his part with reference to the use of loud and vociferous language or threats might reasonably be calculated to cause harm to plaintiff's wife, either mentally or physically or both; and defendant further alleges that the acts and conduct of the said Bunch as aforesaid, the duly authorized agent, servant, and employee of the defendant, while acting within the scope of his employment, were reckless and without provocation and constituted a tort and a breach of the peace and were in violation of the statutes and laws of this State and proximately caused the damages and injuries herein complained of. * * * that by reason of the injuries and the physical pain and anguish proximately caused by the reckless and negligent acts and conduct of defendant's said agent, servant, and employee while acting within the scope of his employment, plaintiff's said wife since her said injuries has been and will in the future be unable to assist plaintiff in his work or to do her housework and care for and mother her said children and that such inability on her part will probably last during the remainder of her natural life."

On the 11th day of January, 1936, and prior and subsequent thereto—the period of time in which Brown alleged that his wife suffered her injuries—The Reed Company, hereinafter referred to as appellee, had in force and effect a policy of insurance with The Travelers Insurance Company, hereinafter referred to as appellant. The insuring clauses of the policy were as follows:

"I. To indemnify the Assured against loss by reason of the liability imposed upon him by law for damages because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons except those employed by the Assured or those to whom the Assured may be held liable under any Workmen's Compensation law.

* * *

"II. Bankruptcy or insolvency of the Assured shall not relieve the Company of any of its obligations hereunder. If any person or his legal representative shall obtain final judgment against the Assured because of...