*1 damages employer to contribute to ego and was liable alter already paid, un- it would not over and above they jury confused and think that for the to become reasonable employee plaintiffs returning in favor the two a verdict were for one compensation carrier the amount $6000 for the other over and above com- employee plaintiff and $7500 popular already paid. In readiness to im- pensation view company, liability and in view pose upon an insurance verdict, jury’s error should held as a matter of this admitted prejudicial. law to be improper injec- error result of trial court’s
tion of insurance —not insurance the sense seeking covering negli- recoupment, insurance gence Company. damage of the Stevedore This could not fail tо employee plaintiffs the cause of the two and of the carrier agree recoupment. Under these circumstances I cannot though trial court’s error was harmless even there be no State- Appeals’s judgment ment of Facts. I feel that the Court of Civil reversing remanding just for another trial correct and should be affirmed.
Opinion January 16, delivered 1952. rehearing April 2,
Motion for overruled Lloyds Haygood Fort Worth v. Tom E. et al January 23, 1952. No. A-3228. Decided Rehearing April 2,1952. overruled (246 Series, 865.) S. W. 2d *2 Kemper, Eugene Wilson, & Schmidt and Wilson all Hous- ton, petitioner. holding erred
The Court Civil that Fort Worth legally to establish Lloyds, bound the insurance Sugar Company, tort-feasor, negligence compensation benefits recoupment of workmen’s the basis for as where the the circumstances under paid Company, Sugar de- as plaintiff, injured employee, dispose claim fendant, agrеed themselves between Lloyds, of Fort Worth the consent and cause of action without Texas Utilities Ins. Co. West the intervenor. Traders & Gen. 57, 165 S. W. 2d 713. Rosenberg, Richmond, George Roane, Baker, H. Cecil Jones, Houston, all for Tom E. Albert P. Helm & Jones and Richmond, Haygood; Dutton, Baker, Botts, Andrews L. & C. *3 Parish, Houston, Keeton, Dallas, Imperial for and R. E. of of respondents. Sugar Company, Haygood Appeals correctly held and The Court of that Civil legal right Imperial Sugar Company to enter into the had infringe any right
agreement, thereby Fort Worth and did of Lloyds. Herrington, Independent Torpedo Eastern Co. v. 2d 377. S.W. opinion delivered the of the Court.
Mr. Justice Griffin 21, 1949, respondent, Haygood, On June E. an Tom Conveyor Service, installing P. of S. Braud was while plant Imperial Sugar Company machinery certain Conveyor Sugar which pany Service had cоntracted with the Com- Haygood paid to install. was as for his $7139 injuries by petitioner, Lloyds, Fort Worth Conveyor Compensa- carrier of Service under the Workmen’s Thereafter, Haygood Sugar a tion statute. filed suit Company, party tort-feasor, Lloyds as a third and Fort Worth sought recovery intervened and of of amount attorney’s paid Haygood, expenses it to and for and fees. Ef- Sugar Company forts were made to settle this suit with Haygood Lloyds, agreement and Fort Worth but was reached. Sugar Company Haygood and that contend no settlement was illegal unjust reached because of the and demands made Fort Lloyds expenses attorney’s as Worth to amount of fees trial, Sugar Company Haygood claimed. On date of an- open they agreement nounced in court that had entered into an whereby a Haygood, cash, for plus consideration of $12500 Haygood, additional in the event of $100 an ulti- recovery against Sugar judgment mate Company in the then pending assigned $12500, suit in excess of levy “all way any pay- collection, or demand or secure execution, effect * ** upon any on or account my and benefit use ment my Imperial favor may be rendered
judgment account of said accident.” other on Sugar Company executed provided was without agreement further subrogation rights upon, Fort to, Worth or effect prejudice Compensation Act of with the Workmen’s Lloyds accordance Haygood cooperate Texas, would and stated that State prosecution pending Lloyds fully Fort Worth writing date, agreement not reduced on was suit. writing trial later and before was over. Fort was reduced proceeding case, responsibility of with the Lloyds took Worth assignment which, agreement and we proof put on and construe, — being purposes settlement and all intents Sugar Company by Haygood, except for an additional release finding contingency. court, The trial a certain $100 proceed trial, attorneys with the entered plaintiff’s refused dismissing Sugar Company Haygood’s judgment suit providing Lloyds, prosecutiion, that Fort for want of intervener, Worth nothing. Upon appeal af- take Galveston, by the at firmed Court Civil SW Lloyds of Fort that when it had It is the contention Worth Sugar Haygood Company, proven with full the facts that knowledge rights, Haygood’s of its had settled *4 Sugar $12500, plus Company of action the for addi- $100 tional, judgment against settling parties was entitled to a compensation payments plus for the amount of its expenses reasonable attorney’s Sugar It fees. contention is the Lloyds Company could that Fort Worth not recover without against proving up Haygood’s Sugar first cause of action Company. by previous is
We think this case controlled decisions of this court, among which is Traders & General Ins. Co. Texas West Co., Utilities Texas S.W. 713. cannot find We legal principles applied -real difference in the in case and controlling those this case. Compensation When the originally Workmen’s statute was passed provision requiring this state in it contained no injured employee an suing to make an election for his between compensation him, against filing due a law common suit the third tort-feasor; any provision nor subro- was gating paid compensation the insurance carrier whо had any rights injured employee. of the Fox Dallas However, Compen Hotel SW entirety sation Act in amended in and what is now 1917 was Stats., 1925, 6a of Tex. Ann. Civ. Section Article Vernon’s inserted Act. That section reads as follows: compensation injury payable “Where the for which under legal creating this law a lia- was caused under circumstances damages bility person pay in some other than the subscriber to respect thereof, employe may option proceed at his either against damages against person at law as- to recover or against compensation law, both, sociation for under proceed person and if elects to at than he law other subscriber, then he shall not be entitled to under this If law. claimed under this law injured employe legal beneficiaries, or his then the associa- subrogated injured employe tion shall be to the may necessary may so far as enforce in the name of the legal employe or of his beneficiaries inor its own name joint employe use and said or benefit of beneficiaries liability person, association the of said and in other greater the association paid recovers sum than that or as- employe legal sumed beneficiaries, association to the or his together with enforcing liability, reasonable cost of such trying shall be case, determined the court then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be injured employe or his beneficiaries. The association shall not adjust have the compromise liability such person such third injured employe without notice to the or his approval beneficiaries and board, hearing thereof.”
Under option injured employee this it has been held that an has persons sue, as to which of two will he and that he cannot prosecutes receive if he first his suit party tort-feasor, the third but that after he has re- compensation payment ceived party tort-feasor, may proceed against he *5 compensation the event the fails proceed. or refuses to Employers so Texas Ins. Ass’n. v. Bran- don, 636, 126 982; Texas 89 SW 2d Houston Gas & Fuel Co. v. Perry, 102, 127 Texas 91 2d SW 1052. constitutionality of this Section 6a was attacked in Con- solidated Kirby Underwriters Co., (Tex. v. Lumber Com.
154 holding approved of the Com-
1924) 703. court SW question There it said discussed. was mission of on the against could recover that under the 1913 Act the tort-feasor, party the third carrier and compensa- although compensation carrier, the full reason, tion, subrogation. “This situation was had no bring employe more than his dam- imperfect; it served to economy, ages, was, perhaps, and to make not sound ex- insurer and hence more more to the insurance pensive burdensome public ultimately would employer to the than the actual recovered from have been the had the amount repayment applied the amount to the tort-feasor been first employe, him compensation, make then balance whole.” supply remedy defects and
“It was doubtless these particular juster politic section that and more substitute investigation (6a) is now under of the amendment col., passed.” Ibid, p. emphasis added. 2nd is but one cause It hаs been held Employers’ Insurance Ass’n. tort-feasor. (Tex. App.), Ry. 2d P. al Civ. SW v. Texas & Co. et ; dismissed, cit., 750, (5) judgment, p. Hart loc. correct writ Drug Store, (Tex. Indemnity v. ford Accident Co. Weeks & refused, (1-3), App.), want of 2d error Civ. SW in favor merit. Also that no cause of action exists damages, except if representatives, or his any, insur suffered excess of the amount Dillingham, (Tex. App.), ance Mitchell collected them. cit., dismissed, authorities p. loc. writ SW Perry, supra. cited therein. Fuel Houston Gas & tort- Where suit has been first filed given feasor it been held has therefore, is not injured employee, representatives, liable to the or his al, Employers’ Indemnity Corporation amount. v. Felter et (Tex. App.), Com. SW Perry, supra, Perry,
In Mrs. Houston & Fuel Gas Co. v. daughter, and as next friend for sued Gas her minor Company Indemnity Company for and Hartford Accident & damages оn the father account of her husband and the death of allegations negligence the Gas minor. After *6 alleged Company Company, Indemnity here- it was that the by paid compensation expenses plaintiffs, and virtue tofore Hospitals being Es- compensation for Hermann carrier Indemnity tate, employer Perry. of the deceased D. N. Com- any pany duly process, pleading was served with filed no but jury kind for whatsoever. Plaintiffs obtained a verdict compensation expenses paid, amount in excess of judgment plaintiffs the trial court and also for the rendered for Indemnity Company expenses compen- amount for paid. Upon judgment appeal sation re- theretofore this formed the Court of as to an obvious error Civil calculation, in judgment otherwise affirmed. court reformed This plaintiffs’ recovery
so as to deduct from the full amount compensation expenses paid by compensation of plus pay
the amounts for which it was in the future. liable Indemnity Company This was in the face of the failure of the any pleadings seeking any file relief kind character. judgment The Indemnity Company of the lower courts for the aside, was set pany. recovery Indemnity and no allowed Com- Ponder, In (Tex. Hanson App.), Hanson, Com. SW collecting after employer’s (Summer from Company) Sollitt (United Fidelity Guaranty carrier States & Com- pany), against filed injuries a suit for his Ponder as receiver Antonio, the San Railway Company, Uvalde & Gulf as third party tort-feasor. Fidelity Guaranty In this suit United & States Company right intervened and claimed its under Judgment Section 6a of Article 8307. was rendered Fidelity United Guaranty Company, States & and it did not appeal. preemptory given A instruction Hanson was court, evidently the trial upon ground by accepting he had lost his to sue the third tort- feasor. judgment lower court was affirmed the Court of Appeals. reversing Civil courts, In both remanding the upon merits, cause for trial court said: situation, “In (upon merits) a retrial if Hanson verdict, court, rendering secures judgment, should de- damages duct from the jury amount of found the amount ‘compensation paid’ cit, col., p. ”. Loc. 2nd 40 of 300 SW. Ry. Reinle, al, Galveston-Houston Electric et al v. et Co. (Tex. App.) refused, 264 SW writ was a where Reinles, collecting compensation after from deceased employer, W. S. Reinle’s filed a third tort-feasor Ry. and others. the Electric damages join prosecuting refused to the suit *7 co-plaintiff co-plaintiff as it was dismissed from such Uрon jury rendered
the suit. verdict the trial court favorable Reinles, compensation the less the amount of plaintiffs. compensation awarded award was deducted the plaintiff’s recovery though from even the carrier prosecute, refused to and had from the suit as been dismissed co-plaintiff. and remand- of Civil reversed Court holding judgment, parents ed Reinle’s were neces- that S.W. sary parties approved disposition to the suit otherwise Application by refused cause. for writ error was court. principle underlying
1 We believe the
last
fundamental
three cases cited above is that where
has been
paid
injured employee,
representatives,
they
to an
or his
against
money
tort-feasor,
later file suit
the first
paid
by
employee,
representatives,
or recovered
or his
be-
longs
paying
compensation, and
to the
paid
full,
representatives,
until it is
have
rights
funds;
they any
nor
of action
have
many
Traders
the tort-feasor.
in so
words in
This court has said
57,
& General Ins.
v.
Texas
140 Texas
Co. West
Utilities
a sum than the association to the that * * * enforcing employee together such with a reasonable cost of recover, nothing liability’ employee then cannot for there is remaining recoupment by the asso which is not absorbed compensation paid injured employee, and ciation of the 35; Ponder, App., costs. Hanson v. 300 Tex. Com. S. W. Employers 636, Brandon, 2d Ins. Ass’n. 126 Tex. 89 S. W. 982; 102, Perry, Houston Gas & Fuel Co. v. Tex. S. W. 1052; Independent Torpedo Herrington, 2d Eastern v.Co. 17, 377; Dillingham, App., Tex. Tex. 2d Mitchell v. S. W. 2d writ dismissed.” S. W. [*] [*] [*] knowledge compromise full on
“The settlement was made with subrogation rights. part on the of the settlers of the association’s alleged belonged company While the cause of action injured ‘by to the he owned it burdened * * *’ recoup compensation paid In- association to itself for supra (128 Herrington, Tex. Torpedo dependent Eastern Fidelity Cas- Union 379). pointed out in It is 2d 95 S. W. Light Company, Tex. Civ. & Texas Power ualty Company et al. v. ‘right refused, of sub- that such writ 35 W. S. (sec statute only terms of this rogation in the has existence also directed.’ It is only therein 6a) as can enforced and it be recovered’ to be opinion ‘the amount that stated appropriated between is ‘to person tort feasor is, the association statute,’ that parties directed ex- recovered, and that the recou/p the amount out of first itself money paid over only employee. The cess law, belonged, Traders under the therefore charged company were and the & General both the knowledge knowledge fact and had actual asserting Traders & General was *8 right the the time made. at the settlement was of paid money is association to reimbursement out the of first statutory; the employee permitted, and in is without event the alleged association, consent of to claim the the settle his person feasor, eliminating third further interest tort thus his authorizing suit, provisision the the insur- statute joint ance said association to the and use benefit of enforce employee feasor, cmd liability the association the of tort is such thereby nullified. Such between transaction the legislative the purpose, association would the and is contravene money belonging wrong- unlawful. The to Traders & General fully paid by wrong- company employee, the utilities to who fully it, thereby pay received and both rendered liable to were to compensation Traders & General of amount theretofore paid by together to employee, with costs of enforce- ment, including attorney’s a reasonable fee therefor.” In the at bar only the settlement was made not knowledge full rights Lloyds, of Fort Worth but also & Traders findings General case and its rule of law. In its of fact the trial court September 27, 1950, states: “17. That on (a day) trial Haygood, Plaintiff Tom E. Defendant, Imperial Sugar Company, agreement writing had not reduced their ** * * * * attorney because the Defendant’s determined agreement how to cast the written in order to remove it from scope type ‘compromise agree- conventional settlement * * * mеnt’ and not in violation Supreme decision of the Court styled in the case ‘Traders & Ins. General Co. v. West Co.,’ reported Utilities (2d) Therefore, 165 SW 713.” parties all agreement entered into the settlement with full knowl- edge of the law and applicable the facts thereto. appropriate an in an case on
2 It is to be remembered that Compen- being injury by covered received given proceeding Act, option (1) he sation is right any free and untrammeled third tort-feasor subrogation anyone full and free direc- part and with on the compensa- may cause, (2) receive of his or he tion and control choosing By employer’s compensation this carrier. his tion from bring remedy, representatives, into his second subrogates to the play law which rights against It is a employee’s tort-feasor. make, person, ex- and no other choice which cept must being, af- to come into he cause the can under party tort-feasor. He is fect his chooses, compulsion option he makes no as to he knowledge voluntarily freely with full choice legal of his effect choice. may Having do he elected to recover —which showing
merely by accidentally course that he was negligence having employment burden to show of his —and defenses, any subject law or to be other the common compen- nothing unjust giving pays the the carrier who money recoupment the statute. The first sation the under go rightfully paid, the carrier who has should reimburse employee. pay, or assumed to As necessary make the carrier excess above the amount *9 whole, requires paid injured em- to the statute the same be insuring ployee, representatives, full or his for him thus damages by injury. and his total amount of suffered plaintiff Lloyds recover from the 3 Fort is entitled to Worth Haygood Sugar Company, and the the amount of enforcing “together paid Haygood such with cost reasonable liability, trying by which shall the court be determined greater case”, (which and the than com- excess is $12500 pensation paid), paid Haygood. found shall to The trial court be compensation paid that that the amount of and $6800 paid treatment, hospitalization, carrier had nursing for medical $339 drugs, reasonably necessary and alleviation for the condition, Haygood’s $7139, the said Tom E. or a total of any attorney’s failed find Fort to amount fees for to Lloyds. The recover a reasonable Worth is entitled tо attorney’s by Hen- fee to be et al v. fixed the trial court. Smith ger, (26), 425, 434-435, 20 A.L.R. Texas S.W. 2d 2d 853. Sugar Company, Haygood by respondents, and
It is claimed permit take an unreasonable a carrier this result will injured regard by compromises position settlements employees, illegal by a car- and unlawful demands and sustain plain agree The statute is rier before it will a settlement. party lawfully to what demand from the third the carrier can tort-feasor, suffers event damage demands made virtue unlawful would we think the carrier be liable damage. proper case, for such A. Furniture Com- G. Stowers Indemnity App.), pany Company (Tex. v. American Com. 2d 544. S.W. judgments hereby both courts below are reversed
this cause is remanded judgment to the trial court with directions enter Lloyds respondents
in favor of Fort Worth Haygood Sugar Imperial Company Tom E. for sum $7139, plus attorney’s a reasonable fee to be determined trial court.
Opinion January 23, delivered dissenting. Wilson,
Mr. Justice respectfully I majority dissent reason opinion incorrectly seems me to construe Sec. 6a of Art. 8307, R.C.S. 1925. determining In has settle portion (a property right), majority opinion lawsuit ignores ought determining factor, what to be the and that is the party title control action. joint Sec. 6a forces a inherently venture between two in-
compatible parties. Unless control of the third action can fixed in either or the carrier the relationship unsatisfactory says to both. Amici One Curiae that “the scheme of the third action known Law violates the Biblical command that the ass and ox should *10 yoked together.” not be
Sec. 6a been “inept has referred to as an bit of draftsman- ship.” Lawlor, Comp. Laxo, Thirty Workmens Sec. 411. years confusing emphasizеs legislation results this. This improved by eliminating could be provision for an election retaining multiplicity recoupment. prevent would a while a expense parties. of suits and for both save negligent right recovery The carrier’s solely party 6a of Art. 8307. Our are derived from Sec. in 1913 without compensation law enacted Workmen’s primarily present 6a. of the 1913 Act related Sec. Sec. employees 16 Gammel’s Laws of status of of a subcontractor. entitling the car a clause in this section Texas 433. There was given very indemnity” limited this was rier to “recover application situations. Aetna Life Ins. Co. v. to subcontractor App., Co., writ refused. Tex. S. W. Otis Elevator subrogation in generally was no It was determined Co., 111 Texas dependent Fox v. Dallas Hotel of the statute. Archer, 517; Ry. Tex. Civ. P. Co. v. 240 S. Texas & W. Lawlor, history; Texas Workmen’s no writ 203 S. W. Review, 971; Comp. 411; Law, 46 Yale Sec. 38 Harvard Law Review, Presumably Journal, 695; Minn. Law Law situation, prevent two recoveries for the same and to meet this Kirby injury, Lumber Underwriters v. Consolidated Legisla Chicago Review, 231, 238, 703; Law 12 U. of S. W. 6a. in 1917 enacted Sec. ture giving jurisdictions American an interest
The the carrier roughly negligence party divide into two in a third action groups. group first holds that title to the third The operation passes by what of law to the relationship. a trust The carrier controls the suit amounts to recovery above and must account to for excess recovery. compensation paid the reasonable cost less group of the suit remain with second holds title control charge burdened with what amounts to lien or compensation paid. amount Kan- favor Contracting Co., delin v. Mexicо 24 P. Lee Moor 37 New 731; 971; Review, Journal, Yale 38 Harvard Law Law 695; Chicago Review, Review, 282; 7 Fordham Law 12 U. Law 231; Review, 684; Schneider, 35 Minn. Law Workmen’s Com- Text, pensation pp. Vol. 180-228.
Since the carrier’s action are derived solely 6a, problem from Sec. Texas becomes one determ- ining legislative this, subrogation. word intent. In the crucial assign automatically Does the doctrine of title to the carrier?
161
subrogation
The word
ais
word, originating
technical
in
surety-debtor-creditor
relationships,
having
very perplex
ing development
applied
as it
original
came to be
outside (1
field.
When Sec. 6a was
1917,
enacted in
Texas,
the law in
stated in
Cockerell, supra,
1,
Faires v.
subroga-
note
was that
assignment.
did not work an
The fact that Faires v. Cock-
erell was
overruled in
Kroeger,
1931
supra,
1,
Fox v.
note
does
chаnge
meaning
legislative
construction of the
in-
tent in the use of the word.
1)
concerned,
subrogation originated
As far as our
Eng
law is
the word
in
Equity.
problem
surety paid
and,
land in
A
arose when
a debt
under the com
law,
extinguished it,
leaving nothing
assigned
support
mon
thus
to be
injustice,
cause
of
the debtor. To meet this obvious
the doctrine
subrogaion
Originally
England,
was
from
borrowed
the Civil Law.
in
under
subrogation
surety
creditor,
secured all of the
and remedies of the
eighteenth century,
doctrine,
but in the
in what came to be called Lord Eldon’s
it
equity
assignment
admittedly
was announced that
would not decree an
of an
extinguished
“Equity
law,”
cause of action
because
the maxim
follows the
but
surety
"step
creditor,
instead the
was allowed to
into the shoes” of
or to
Morgan
Seymour (1637) Rep.
64,
“substituted” for the creditor.
v.
1
Ch.
1 Chan.
Rep. 119,
Eng. Rep. 525;
133,
Crisp (1744)
Eng. Rep. 87;
21
Ex Parte
1 Atk.
26
(1749)
339,
Rep. 1068;
Eng.
Supp.
v. Stone
I
Gammon
Ves. Sen.
27
Ves. Sen.
162,
Eng. Rep. 488; Woffington
Sparks (1754),
570,
Eng.
28
v.
2
Sen.
28
Ves.
363;
Rep.
Wilson, (1814)
434,
Eng. Rep. 395; Copis
Robinson v.
2 Madd.
56
v.
(1825)
223;
Eng.
1083;
223,
Eng. Rep.
Simpkins
Middleton
Turn. & R.
12
Ch.
37
81;
(1824)
(1824)
v. Poulette
2 Law Journal
Robison
Larkin
2 Law Journal
v.
81;
Cook,
App. 385,
Equity
Burrus v.
117 Mo.
93 S. W.
In this manner
888.
cor
injustice
directly joining
rected an
while not
issue with the “common law’s re
may
assigned.”
luctance to admit that a chose in action
Aetna Life Ins. Co.
Moses,
530,
477,
Sup.
U.
v.
287
S.
77 L. Ed.
53
231. In
Ct.
1856 Lord Eldon’s
repealed
England by
Act,
doctrine was
in
statute. Mercantile Law Amendment
ambiguity
1856. 19 and 20 Vict. c. 97. But
in
latent
Lord Eldon’s definition
subrogation
already
way
made its
of
raised one of the most
Eldon’s doctrine was introduced into Texas
into the American common law and
thorny problems
jurisprudence.
in
In 1848 Lord
Fields,
jurisprudence
in dicta in Close v.
91,
Rogers,
payment
In
Tex.
number of ad reconciled, the construction I cannot but believe holdings in most harmony the dissent is in with vocated this of the Texas cases. expressly declare 6a does not Sec. second sentence of party passes
whether title to the cause of by operation of law or not. concerned are of title we
The vital and material
incident
(2)
majority opinion
one cause of
is but
It is clear as
holds that
the
App.,
Ry. Co.,
Employers’
129
P.
Tex. Civ.
action. Texas
Ins. Ass’n. v. Texas &
Co.,
Fidelity
746,
judg. cor.;
Tex. Civ.
P. & L.
2d
writ dism.
Union v. Texas
S.W.
may
782,
history.
employee
App.,
or the carrier
Either
the
35 S.W. 2d
no writ
App.,
suit,
Ry.
Reinle,
264
Tex. Civ.
initiate the
Galveston-Houston Electric
Co. v.
Morris,
783;
Ponder,
App.,
35;
v.
Hanson
300
Schnick
S.W.
v.
Tex. Com.
S.W.
Nees,
App.,
App.,
491,
refused; Epting
25
Tex. Civ.
Tex. Civ.
S.W.
2d
writ
v.
S.W.
717,
only
suit,
v. Traders &
2d
one
Hart
writ refused. But there cаn be
severable,
Co.,
146,
Hartford
General Ins.
Acc. Indem.
144 Tex.
493. It
is not
189 S.W. 2d
153,
Drug Co.,
App.,
2d
writ refused
Tex.
161 S.W.
Co. v. Weeks
may assign
However,
their
want of merit.
this cause of action
both owners of
property rights
17,
Herrington,
Torpedo
128 Texas
in it
Eastern
v.
to each other.
Surety Co.,
377; Epting
Nees,
Snodgrass
supra;
American
S.W. 2d
v.
v.
Langston,
history;
App.,
1004,
Tex. Civ.
Tex. Civ.
Foster v.
S.W. 2d
no writ
App.,
Allen,
history;
143 Tex.
170 S.W.
no writ
Elevator Co. v.
2d
Otis
writ dismissed; missed, would passed reaches an of action is in the supra; seem Houston judg. operation apparently to hold cor.; Younger Gas & Fuel Snodgrass employee. of by contrary Bros. v. Moore, law to the implication Co. v. v. American Graves v. result and Perry, carrier. But that Tex. Civ. Poe, seem Surety Co., supra. the title Tex. Tex. Civ. to hold that App., 102, to the 91 S.W. 2d 135 S. W. 2d is a App., the title to the cause line of cases which 1052. of S. W. 2d This case writ dis- 969, Law “belongs Texas Utilities, Eastern There are a Review, Torpedo to the supra; employee” number v. Myers v. Herrington, of cases burdened Thomas, containing by the supra; right Traders & General statements Tex. of the carrier 186 S. that the cause W. Ins. Co. v. recoup itself, of action 16 Tex. West “jointly In Schnick Morris, supra, v. it that stated the cause of action is owned” both the carrier and the employee. nating where upon held nevertheless statute rogation. a final election her the court included the Accident & Guarantee S. refused. But all of this rested on the W. 2d actual The first in the with a take-nothing “to widow of a deceased employee impairment thought Employers’ impairment proceed wording sentence of Sec. 6a has been construed writ recent rationale, then that that to control case because refused, at of the statute Indemnity she had made law.” Corp. these is diсta in of title and control holding employee of the carrier’s the trial Fort Worth Although cases subrogation in impaired she had Co. v. Cooper, ignorance that have done itself without these prosecuted it the mere Felter, binding Lloyds Tex. is not election passed of her compensation suit. so, supra. and all place their construction a suit v. Essley, Tex. Civ. usually election which was a bar The Felter filing a rationale. Felter cases as their in a right of a suit constitutes carrier’s There carrier. See necessary case unless series of case indicates subrogation. could have been a third S.W. right rights, result cases culmi- also, that App., supply party can be it was Ocean Thus term writ sub- that an a goes than the word further
The statute may take over the control the suit. the carrier states so, acts of “trustee.” does it as sort Schnick When supra. Morris, The statute does not state circumstances may control, and I find carrier take over the under which the discussing point. no cases 6a that under Sec. title with control should hold
We employee and with the of the cause action remains Compenastion employee’s does election to take Workmen’s assignment party operate law third of the title to remain action. Because title control money upon equivalent recov- has the of a lien the first recoup compensation paid. ered it for should portion tentatively able to settle with the be interlocutory in the cause of action. This settlement should be being incorporated final trial court and become judgment. final and the As between the duty рrosecuting the suit still would have judgment. recovery against final If the should compensation paid, the carrier would be be excess recoupment portion entitled of fact verdict finding governed by exceeding compensation paid would be settlement. If lost or the verdict less than the case be recoupment paid, the carrier would entitled to money from the tendered settlement. *14 argues
The leave it construction would jury not The need but shell of a lawsuit. This is not true. Thomas, supra; Myers parties, v. know the true status of the Willoughby, App., 2d af- 183 Johnson v. Tex. Civ. S. W. Allen, part 143 in firmed in in Elevator v. Otis Co. 187 2d same are available. S. W. 657. The witnesses argues not a witness would
The carrier as that the required are be as effective after settlement as before. We Besides, presume the truth in both situations. he will tell 6a, under win the this construction his incentive to of Sec. remains the same as before settlement. Traders with construction of 6a not in conflict Sec. Co., supra, inis & General Ins. v. West Texas Utilities employee dismissed
harmony In results. that case its destroyed right of carrier’s action and thus subrogation protected construction would be under this In Sec. 6a. that case carrier did not take over the con- Ponder, supra, trol the case. In the land- case Hanson v. recognized mark case because it this for the first time court right bring employee’s the suit without court, quoting 6a, after said: Sec. language continuing right just imports
“The mentioned compensated employee persons than the other em- bring ployer, giving right and the words the insurer the suit permissive are in form.” expressly prohibit employee’s 6a
Sec. does or restrict right compromise part suit, policy there is prоhibiting Co., law such Ins. of the settlements. Holbert Safe 422; Va., 221, Mutual E. Brown v. Vermont Fire S. W. 1061; Vt. A. 399, Connecticut Fire Ins. Co. v. Ry Co., Rep. majority Erie opinion 73 N. Y. 29 Am. The general favoring contrary policy
runs of the law litigation. pro- 6a settlement The last sentence of Sec. right adjust vides that compromise the carrier “shall not have the liability person such such third without injured employe ap- notice to the or his and the beneficiaries proval board, upon hearing of the thereof.” are not called We upon meaning to determine the of this sentence the case at Legislature contemplated bar but does show that the at least type compromise placed one some restrictions compromise. very carrier’s The reverse of the situation portion at bar —a settlement of the cаuse action, leaving carry on the for the suit early approved by appellate excess—was court. Lancaster Hunter, Tex. history. 217 S. W. no writ My approximates, construction of Sec. 6a the lan- within guage statute, policy what should of the law. In Aetna, F. arising suit under the Compensation Harbor Workers’ Act the said: court Compensation (Federal “Prior to the amendment of the Act Workers) 1938, any acceptance Harbor *15 injured employee assignment an forthwith an worked to the employer right employee’s against of the per- action third injury. sons for employer his inwas aid of the and not upon right subrogation. limitation signment his The reason for the as- the apparent. law thus afforded is An employee, especially compensation, may once he has received right have nеither press the nor incentive the desire his injury. Hence, against responsible persons his for third employee’s employer passed control the law to the the employee accepted right persons once the of action third assignment compensation. so possible harm from But the informally An summarily acquired manifest. became so exigencies non-productive injured employee, of his out the might necessary accept compensation at find it situation thought right of action others. once without for his Yet, third of action therewith his of his control automatically employer interest persons passed whose employee’s pressing it more pressing or in for than claim enough satisfy employer’s requirements, as measured acknowledged liability voluntarily for the extent tо which he might great.” not be present my Applying of Sec. 6a then construction negotiations beginning I find that at of settlement situation $9,873.11, maximum amount the carrier on whereas the insisted being compensation paid $7,139.00, the difference pleadings $2,734.11. as: itemized in their This difference was original (a) investigation expense work- for $99.11 claim, men’s original defending
(b) attorney’s work- fees in $235.00 compensation claim, men’s prosecution
(c) attorney’s fees incurred $2400.00 present suit. thought employee the demands of arbitrary. in amount and Otherwise were excessive might parties were entire case have been Since settled. case, agree unable to on a settlement of entire party, recognizing out- the risks involved in agreed damages, come of a suit an amount which would protect recovery by at insurе the same time agreed liability the third upon. Why in excess the amount from right? they have should In- American The case of A. Stowers Furniture G. demnity little comfort. affords the S. W. com- In that blames insurance situation insured his own allowing pany compromising policy for not within limits go policy limits. a case to to a final in excess of the injured employee prevented by the from Here compromising exceeding portion the cause of action *16 goes Suppose party third action claim. the take-nothing another cause judgment. employee the to have Is re- against for the amount he would have of action prove by compromise? he must case ceived Under the Stowers give remedy negligence. very unsatisfactory the This is exchange taking away his employee the to control prоperty. own majority opinion
I the statement cannot reconcile action with another statement from that there is but one cause of money employee, paid first or or it “the recovered the representatives, belongs paying carrier compensation, full, until it funds; they representatives, his any have no nor have hap- of action If from cause tort-feasor.” pening accident starts with cause electing party, upon action the third and if com- take longer pensation he no a cause has of action until (as recouped majority hold), necessarily then title passes by operation to the cause lawof to the carriers. holding If this in effect majority, be the follow should gains loses and the carrier control of the event, In action. latter is all mоre allowing settle, reason for and none it. legislative I feel that the opposite intent was the exact and that effecting Sec. 6a should be construed as not as- automatic signment of title action to carrier. Perhaps the most majority fundamental opinion flaw in the some the cases which it relies is that it fails to problem view this involving a damages as one division of the which flow from action, an indivisible cause of rather than of dividing the itself, which, cause of action very because of the negligence action, nature of a cannot be done. majority opinion effect of the is to create a windfall for Sugar Company Sugar Company it allows the plaintiffs settle with expected both for the same sum it to be settling only the cost of my one. Under view of the trial court should be reversed and remanded for trial."
Opinion January 23, delivered 1952. rehearing
Motion for April overruled