Whitehead v. Traders & General Ins. Co.

• Decision Date: 08 May 1939
• Docket Number: No. 5030.,5030.
• Citation: 128 S.W.2d 429
• Court: Texas Court of Appeals
• Parties: WHITEHEAD v. TRADERS & GENERAL INS. CO.

128 S.W.2d 429

WHITEHEAD v. TRADERS & GENERAL INS. CO.

No. 5030.

Court of Civil Appeals of Texas. Amarillo.

May 8, 1939.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Action by C. B. Whitehead against the Traders & General Insurance Company to recover balance due on judgment obtained by plaintiff against a common carrier insured by defendant under public liability policy. Judgment for defendant, and plaintiff appeals.

Affirmed.

Clyde Vinson and B. A. Carter, both of San Angelo, for appellant.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellee.

JACKSON, Justice.

This suit was instituted in the District Court of Tom Green County by the appellant, C. B. Whitehead to recover the balance alleged to be due him evidenced by a judgment obtained by him in the District Court of Tom Green County against E. D. Rhea.

The appellee in due time filed its plea of privilege which after a hearing was sustained and the case transferred to the District Court of Dallas County and no complaint is made of such action.

The appellant filed his first amended original petition in the District Court of Dallas County to which the court sustained the general demurrer urged by appellee, he declined to amend, the case was dismissed, and from this action of the court this appeal is prosecuted.

He alleged that on or about October 8, 1935, and prior thereto he and E. D. Rhea were both common carriers operating trucks in the State of Texas under certificates of convenience and necessity issued by the Railroad Commission of the State for the transportation of freight; that they were connecting carriers and had a contract for the interchange of freight and the handling of C. O. D. shipments whereby each was to accept from the other freight to be transported and delivered to the consignee, collect the C. O. D. charges therefor and the freight thereon and remit to the initial carrier; that appellant delivered to E. D. Rhea under this agreement and contract at San Angelo, Texas during the months of January and February, 1935 C. O. D. shipments of certain consignors to be delivered at Big Spring, Texas to certain consignees; that the merchandise so delivered to E. D. Rhea consisted of intoxicating liquors which were delivered to the consignees by E. D. Rhea who collected from them the C. O. D. charges therefor and also certain freight thereon but he failed and refused to remit to the consignors or appellant the money so collected but converted it, the items of which aggregated $1926.71, to his own use and benefit and on account of the conversion and misappropriation of said money appellant was compelled to pay to each consignor the money due him from the consignee; that each consignor assigned his claim to appellant, and in Cause No. 9532-B in the District Court of Tom Green County he recovered judgment against E. D. Rhea for the sum above stated on which he has collected $118.74; that appellee had issued to E. D. Rhea a policy of insurance under Article 911 B, Section 13 of the revised civil statutes, and the policy was in full force and effect during the period said merchandise was delivered to and transported by E. D. Rhea, the C. O. D. moneys therefor collected and converted.

The appellant pleaded certain provisions of the policy material to his cause of action, the meaning of some of which we shall state substantially and others we shall quote haec verba.

The policy indemnifies the assured, E. D. Rhea, against liability imposed by law arising or resulting from claims for personal injuries, or damage to property by reason of the ownership, use or maintenance of the motor vehicles enumerated therein while operated for the purposes stated.

The policy was issued subject to certain conditions, limitations and agreements, among which are that the insurer shall not be liable to pay any loss until a final judgment shall have been recovered against the assured in a court of last resort; that the insolvency of the insured shall not release the insurer from liability, and a judgment creditor has the same right of recovery on such judgment as has the insured, but among the limitations of liability it is expressly provided that the policy does not cover "liability of others assumed by the assured under any contract or agreement, oral or written."

Under "Endorsement (Cargo and C. O. D. Coverage)" are the following provisions:

"It is understood that the policy to which this endorsement is to be offered for filing by the above named assured with the Railroad Commission of Texas, in compliance with the law, as a condition precedent to the issuance of a certificate of convenience and necessity to operate as a motor carrier within the State of Texas under the provisions of Chapter 314, General and Special Laws of the Forty-First Legislature of Texas, 1929; and this endorsement is attached for the purpose of making the provisions of the policy conform to the requirements of the law. * * *

"Anything in the policy to the contrary notwithstanding, it is hereby agreed that the assured will be indemnified against loss by reason of his liability at common law or by the Act above mentioned, and particularly under Section 13, thereof, for any loss or damage by reason of the death or of personal injury to any person, or loss of, damage to, the property of any person (other than the assured and his employees), growing out of the actual operation of the motor vehicles or trucks and/or trailers covered under this policy.

"It is also understood, anything in this policy to the contrary notwithstanding, that the insurer herein will pay all damage which may be recovered against the assured based on the claim for loss or damage of property or injury to property while such property is in the possession and/or custody of the assured, and for the failure to account for property shipped as C. O. D. shipments or for failure to return the cash collected therefor arising out of the actual operation of such motor vehicles or trucks and/or trailers without regard to the solvency or insolvency of the assured and this policy shall not be exhausted by one recovery but successive recoveries may be had hereunder. * * *

"The approval of the Railroad Commission of Texas of this policy as endorsed may be withdrawn at a later date when the Board of Insurance Commissioners shall have adopted a standard form of policy covering the insurance hazards contemplated in this contract."

Under "Endorsement (Indemnity for Cargo Shipment)" it is provided:

"* * * This policy is hereby extended to cover the legal liability of the assured to the owner and shipper of merchandise as defined in the (cargo) endorsement hereto attached for an amount not exceeding one thousand dollars ($1000.00) on account of the failure of the assured or any regularly paid employee of the assured to deliver to consignee such merchandise after same has been delivered to said assured by said shipper and/or failure of said assured to correctly account to said shipper or owner for any funds or collections received by the assured or an agent of the assured pursuant to request of the shipper and commonly termed C. O. D. shipment. Provided, however, that this company shall not be liable for any loss under this endorsement on merchandise or the collection thereon, if such merchandise is excluded from the coverage under the (cargo) endorsement hereto attached. * * *

"This endorsement insures against loss or damage directly caused by:"

(a) Fire, etc; (b) flood, etc.; (c) tornado, etc.; (d) sinking, etc.; (e) collision, etc.; (f) overturning, etc.; (g) collapse of bridges.

However, the policy expressly stipulates that: "This endorsement does not insure * * *...