*1 сomplaint regard in shotgun and We find no proached, appellant raised against an failure to ran Walker submit self-defense Beattee fired. ducked by Ockleberry, com car. attack but at the side Beattee’s fell wounded plaint the trial refused to au immediately the scene court Appellant left friend, acquittal not in thorize did shotgun to the home carried Walker, but accidental as tend to kill was the officers. where was recovered correctly trial court to him. The declined behalf, his Appellant, own as a witness charge. to so did not take the though he admitted cafe, his it in hands into the he had gun evidence is sus sufficient to out and "was he saw Beattee come when the conviction error tain and no reversible he what was just there see standing appears. do”; in his gun he going to is affirmed. his car got Beattee out of hands before I come kept coming he and then “and then pulled trigger.”
'up like that and firing testify did not that the accidental, was but testified that gun anyone had no intent to kill and was
he keep
trying them off of “to scare them to did know he had hit he
me” and that he anyone. In confession said that he his UNDER- INSURANCE HIGHWAY at Beаttee. shot Appellant, WRITERS, v. animosity shows no The evidence but between the deceased LINES, (now Inc. ROBINSON TRUCK J. H. clearly shot killed Lines, that the Freight indicates Inc.), Motor Inland Appellee. was intended the deceased Walker Ockleberry. To this extent Beattee No. 12740. killing may been accidental. be said have Appeals Texas. Court of Civil facts, appellant was not Under Galveston. an ac charge authorizing to a entitled 28, Oct. 1954. an accidental quittal upon theory Rehearing submission of killing was entitled to the but Denied Dec. 1954. sub been which should have all defenses Rehearing Jan. Denied 1955. Second Ockleberry. he killed Beattee mitted had State, 42, P.C.; v. See Art. Richards State, ; Covert v. 30 S.W. Tex.Cr.R. 556; Martin v. Tex.Cr.App., 113 S.W.2d State, 379, 115 134 Tex.Cr.R. S.W.2d controlling that the in is not
It allege shooting that the did not
dictment to kill another with intent
was killed accident. Becks
deceased
Tex.Cr.App.,
State,
v. justified
Only appellant was in the event Ockleberry the accidental at firing
killing said shot been of Walker justified.
excusable *2 Dyess,.
Dyess, Dyess & A. D.. Jennings, Houston, Houston, Dyess, Jr., Arthur D. counsel, appellant. Looney, Littleton, Kelley, L. McLean & McLean, Edinburg, C.
CODY, Justice. by appellant against'ap-. is an action
This money pellee paid by.ap:- recover sums of set-, pellant investigating, defending and suit-styled tling a claim .law “Mrs. Sina. Truck, DuBois et vir v. H. Robinson J. court, Lines, the case trying- Inc.” . ap-i jury, a rendered pellant Appellant! nothing take its suit. public insurаnce carrier 'of liabilS ity operated by the. on trucks were Incv,- Lines; appellee, H. Robinson Truck J. a truck which was mak-e. inclusive of certain ing run Galveston back -Houston a 7, 1951, February at which timé .said- truck, operated by being a driver of lee, Chrysler into the rear of 1950’ ran driyen being, which was then automobile Mrs. Sina DuBois. point proDably it
At this woum sim plify matters to state that force of Sec. Ann.T.S., 13 Art. 91 of Vernon’s all l.b pay insurers motor carriers must to the policies judgments limits their may be recovered car motor riers, provide protection as to continuous so question But the public. law in does provision being not forbid a included in policy requiring the carrier to reimburse the any judgment may insurer for have to injury pay accruing county in a agreed that the vehicles wherein operated. statute, not be public, course, the benefit is for but n their protеc- the' sent or remote in connection with insured is entitled to such H. tion No. A07-32658 issued as the affords him.1 J. Lines, Robinson Truck Inc. *3 (“Mo- In the instant Endorsement 77 case Christi, Tex., 21st effective the from tor Railroad Vehicle Endorsement—Texas day noon, July, to Standard of to the form”) Commission was attached Timе, day July, the of on 21st policy And of said of force insurance. rep- part, party the of its the second agreed the to reim- endorsement insured attorneys, may or investi- resentatives any company burse loss under the bod- gate, for, actually prepare or defend ily liability рroperty damage li- injury and us, undersigned, party the me or the of ability be obli- which the should party part, prejudice first the without to exceptions gated pay (with to certain reserving of and still the second here relevant) if truck should rights party its unto said all the second beyond be miles used the radius of 50 from fully completely and and defenses as Corpus Christi, point at the in- the party refused as if had second represented sured or at least warranted whatever, in- any steps in the to take applicable garaged. The rate same was out. or as set vestigation defense above carried was less on trucks the insurance parties re- acts all with “All of the of used of 50 miles of within radius to spect herein referred to the matter operating Christi on out of and than trucks voluntary and to shall be deemed to states, garaged at here Houston. agreement here- pursuant be done to deny, appellee does not re- and expressed. in operated truck Houston and moved the to for some seven months same out of Houston party hereby given is “Notice before occurred. When the accidеnt part, accepted by the and of the second accident, of the it noti- lant received notice part', party parties the first or of liability appellee that it un- fied disclaimed agreement for signer of this oper- grounds as der the on the part, party has no аuthor- of the second Houston, of the truck was ated from out implied or express waive ity or to either insurance. not covered any rights of the whatever invalidate appellant, appellee'and en- Thereafter the.party of second or to commit agrеement: following tered into the part. purpose this intent ánd “The Agreement “Reservation permit impartial is an agreement to mutually hereby agreed is “It be- all relat- investigation of matters full Lines, Inc., Truck H. Robinson tween liability, ing accident and J. to said Un- party Highway Insurance first incur- party, without any, second Company signing Insurance derwriters to liability, and any ring admission party, as follows: agreement this second estoppel, or preserve waiver without any of, any rights forfeiture rep- any party or its “The second parties hereto. attorneys may proceed or resentatives day of investigate duplicate, the cause or circum- this 16th “Signed March, under which accident occur- stances 1951. Hitchcock, Lines, Inc. near Tex. on or Truck red or Robinson H. at “J. Robinson, February, President day of “By: the 7th 1951. H. about /s/ J. Part party, representa- “Party its First of the sеcond
That the aforesaid, may in- tives, attorneys Wise or Kenneth E. “/s/ any Second Part. things affecting “Party all of the vestigate pre- Underwriters.” directly indirectly, Insurance “Highway rights, their Casualty Co., Inc., Cir., Fidelity language virtually & have lifted 1. We paragraph 591. F.2d to -which this footnote of the appended from Wheeler v. American is Hassen, Tex. v. appeal Marine Insurance Co. & predicates appellant here Civ.App., 53 S.W.2d substance contending in points, upon three recovered appellant should that the show- out undisputed agreement evidence set аforesaid (1)because contractually appel bound appellee was hereinabove verbatim authorized the ed that actually the amounts investigate lant to defend
to reimburse appellant, settlement defending prejudice investigation, “condi- case, rights (2) reserving because and de scope of coverage appel fully completely as as if to the fenses going tions fur- steps those any whatever distinguished lant refused to take *4 forfeiture, may not be investigation a for in the or defense of the claim nishing ground or ac- imрlication from conduct au by question. agreement The aforesaid waived sup- express agreement, appellant merely an the tion without thorized to defend consideration”, and (3) ported by necessary new suit to a main and do what was defense, as a was insufficient mаke such because the evidence a but in that connection estoppel any of law to raise issue of the word “defend” mean that the matter does not rights appellant of it successfully waiver suit had to be defended but and/or under contract, provision and under requirе the insurance that did the suit be Rights Agreement. judgment. the of contested until final In Reservation Utilities Montgomery, surance 134 Co. v. Tex. undisputed showed evidence Here 138 nothing S.W.2d 1062. There is in the main suit appellant defended the question contract in which authorized the damages by Du- Mrs. brought to recover main suit to be Whether not settled. or e., times, three there were i. Bois three appellant would have been authorized un mistrial resulted The last mistrials. agreement expenses der to recover appellant established that jury. a hung of the investigation attorneys’ and the feеs jurors would award less not some of paid which it out in the mistrials is not DuBois $15,000 damages to Mrs. for than complaint made before issue us and no injuries personal and some not her is made that the trial court did allow not $8,000. The suit had than less award expenses recovery of such under the $67,500. After thе brought to been recover is, appellant agreement. aforesaid is That appellant sought to have third mistrial recovery expenses seeking not here of of the appellee a settlement to contribute to investigation, attorney’s its and of appеllee sought au- to case and expended fees in the of DuBois defense appellee This stead- a thorize settlement. suit, except the same as constitutes Thereupon appellant fastly do. refused to expense of its whole connec entire personal damages to Mrs. case of settled with the DuBois claim and tion suit. ex- $7,200plus certain medical DuBois appellant’s agreed that it was penses pass now to We on whether come ap- some expenses $900 were lawyer’s the terms of aforesaid “reservation аgainst brought this pellant appellant from barred exercis- agreement” settlement, at- the amount rights to recover under ing whatever it had the law fees, investigation, etc. torney’s cost its of insurance to settle the law suit of Mrs. claim and DuBois. The quot appellant very cleаrly gave agreement in the above au- is nothing There investigate thority which its to claim and agreement” ed “reservation brought against appellant ap- settle the a suit thereon to defend authorized terms prejudice appellant’s pellee to agreement must A nonwaiver con- main suit. nonliability thereon. Beyond insurer and tention of against the strictly construed material, here so the agreement far in favor of insured. liberally construed obscurely expressed. Hughes, rather Insurance Co. v. is But for Fire Pennsylvania present purposes we will assume Aрpleman Cir., also on F. See agreement intention of the Insurance, Springfield Fire to save to page in settlement any in- lee which it out sums under the rights appellant in- liability against which compromise right cluding the to settle ap- appellee. sured liability the DuBois claim of pаragraph to last pellee. Indeed, the next — appellant’s and order points We overrule such construc- may given well be thereof affirmed. closing meaning of the tion. what Just Affirmed. “or to commit paragraph words is, find baf- party part”, we the second Appellant’s On Motion fling. Rehearing appellant un But what were the rights controlling words in Endorsement DuBois claim? settle the der the policy are was attached to the which money, not “ pay its own same off with To * * * agrees to re- these: pay it for the account off company any imburse the loss undеr right to stand Here had the Property Bodily Injury Liability Dam- the truck appellee, moving claim Liability, age obli- is dense, is more where the traffic Houston gated pay (including ex- reasonable *5 pol protection of the removed it from the penses paid, provided demand therefor on In icy, appellant as between in writ- made case, right appellant agree had no ing thirty days pay- (30) within after the appellee DuBois. that was liable Mrs. by ment agreement, of such claim if settled words, appellant contends that In other if otherwise, such demand made at the to be insured, policy, insurer and as between * * * time of final payment) appellant was in force authorize so as to quoted language togeth- taken Under suit, appellant to settle the then was serv appellant repudiated that er with the fact ing purposе claim its own when it appellee any liability under say doctrine to Certainly is novel it off. appellant reimburse the bound to was appellant became by paying such claim that Liability Bodily Injury any loss under claim, against subrogated to the only Property Damage Liability in case hаnd, other insured.2 On the own appellant recovery against had was as between in force was not by brought it Mrs. Sina against appellant no insurer, had insured and DuBois, quite it et It is evident that vir. authority to settle claim thereunder appellee’s position was that its driver was suit. guilty neg- liable of nо act of appellee ligence made liable and this the circumstances of Under appellant obligated after it- bound whether, pass case, necessary to is not it suit, self defend the could not breach Christi the truck removing obligation appellee’s agree this Houston, appellee it from the removed guilty negligence, driver was policy. We hold protection of making compromise appel- settlement agreement” did not authorize “reservation having lant can be deemed as acted case. We the DuBois to settle own for its interest. policy of insurance did not hold appel- Motion for rehearing to recover from refused. authorize lant succeed to said claim not in terms claim that does paying subrogated will of as a result to the DuBois claim it became claim, which, incidentally, appellee paying against appellant But same off. did not recognize process ? could other known what