161 S.W.2d 153 | Tex. App. | 1942
Wade Mahan, a minor, by his sister as next friend, sued Weeks Drug Store for damages for personal injuries alleged to have been caused by the negligence of an employee of Weeks Drug Store in March, 1939. He made appellant a party defendant, alleging that it claimed an interest in his cause of action. Appellant answered and by cross action, which was in effect a plea in intervention, set up its claim of subrogation to whatever plaintiff might recover against Weeks Drug Store, to the extent of $679.50, which it, as Workmen's Compensation insurer for plaintiff's employer, Walgreen Drug Store, had paid to plaintiff as a result of the injuries for *154 which this suit is brought. After all these pleadings had been filed, and the case put upon the jury docket, the plaintiff settled his claim against Weeks Drug Store for $250, filed his motion, in which he was joined by defendant, Weeks Drug Store, for severance, as between him and appellant, of his suit against Weeks Drug Store, and asked that such compromise be approved by the District Court, "for damages suffered by him in excess of the Workmen's Compensation payments he has received." This severance was by proper pleadings duly controverted, in which appellant alleged that if Mahan's claim for such damages be paid by Weeks Drug Store, it was entitled to be awarded the first $679.50 thereof as reimbursement under Sec. 6a, Art. 8307, R.C.S., and under its policy of insurance. The trial court allowed the severance, approved the $250 settlement, ordered it all paid to plaintiff, without prejudice to any rights of recovery appellant might have against Weeks Drug Store. From this judgment Hartford has appealed.
Two questions are here presented: 1. Whether the suit against Weeks Drug Store was, as between the injured employee and the compensation carrier, a severable cause of action; and 2. Whether under the judgment as entered appellant and not the injured employee should have received the $250.
Under Art. 8307, Sec. 6a, R.C.S., legal liability for injuries to such employee may be established by a suit in the name of the injured employee or in the name of the insurance carrier, or both. It is immaterial that appellant in the instant case was first made a defendant. Having pleaded affirmatively the legal liability of such third person, it then became in effect a co-plaintiff with Mahan in the suit against Weeks Drug Store "for the joint use and benefit" of both the employee and the insurance carrier. The provisions of the statute as to the amount the respective plaintiffs may be entitled to, in nowise change the nature of their cause of action against the third person. So far as establishing the "circumstances creating a legal liability" against such third person are concerned, but one issue is presented, the negligence, vel non, of the third person. The same evidence, facts and circumstances must determine that for or against either the insurer or the injured employee, or both. There was no controversy between Mahan and appellant over the payment of the compensation, the insurer's liability therefor, nor the amount thereof. Their respective rights were consequently fixed by the terms of the statute. And if, after all pleadings were filed and the issues made, the injured employee can sever his part of a joint cause of action against a common defendant, growing out of the same occurrence, and invoke the power of the court to approve a separate settlement by him with such defendant; he would, for like reason, be entitled to sever such joint cause of action for separate trials thereof. To permit this would result in two trials against the same defendant involving but a single transaction in both of which the evidence would be identical so far as the liability of the third person is concerned. "The policy which forbids a multiplicity of suits is designed to prevent more than one suit growing out of the same subject matter of litigation, and to require parties to settle their controversies in a single suit, if practicable." 1 Tex.Jur., § 53, p. 670, and cases cited. And such rule is particularly applicable to torts. 1 Tex.Jur. § 57, p. 674.
Nor does this case present an instance of the employee dismissing his suit, taking a nonsuit, or refusing to further prosecute the suit so filed by him. The insurer could not compel the injured employee to prosecute his suit to judgment, though it could itself prosecute same in his name. The employee could at any time dismiss his suit against the wrongdoer, but not that of the insurer. But he did not undertake to do so. On the contrary he invoked the jurisdiction of the court to enter a final judgment in his behalf against the defendant. This is clearly indicated by the provisions of said judgment. After reciting the approval of the compromise agreement, the court decreed:
"That Juanita Mahan Blair, as next friend for Wade Mahan, and for and on his behalf do have and recover of and from defendant Weeks Drug Store the sum of Two Hundred Fifty and No/100 ($250.00) Dollars, in full satisfaction and settlement of all injuries and damages accruing or to accrue to the said Wade Mahan, arising out of or incident to the accident occurring in the City of San Angelo, Texas, about March 20, 1939."
Such decree further provided: "If and when defendant Weeks Drug Store pays in to the Clerk of this court for the use and benefit of said minor said sum of $250.00 and all costs, to be taken out as is *155 provided by law, or in the event a Guardian for said minor may hereafter be appointed and payment of said $250.00 be made to said Guardian, then said Weeks Drug Store will be fully released and discharged from all claims of said minor as set out. The plaintiff may have all writs and executions provided by law for the purpose of enforcing this judgment."
This decree also provided that such recovery was without prejudice to any rights of subrogation the insurer might have; and further that such insurer should have no interest in or claim upon said $250, but that such sum was for the use and benefit of said minor.
Not only do we think that the court erred in severing, as between the joint plaintiffs, a joint cause of action; but that it clearly erred in undertaking to award the $250 exclusively to the minor. The cases relied upon by appellant are not here controlling. In Torres v. Dishman, Tex. Civ. App.
The case of Traders General Ins. Co. v. West Texas Util. Co., Tex. Civ. App.
It is now settled that the employee's right of recovery against such third person is limited to damages in excess of the compensation paid him. The statute itself so provides. See, also, Mitchell v. Dillingham, Tex. Civ. App.
Manifestly we cannot here render judgment in favor of the appellant for the $250, for the reason that both the motion for severance, and the judgment entered, clearly disclose that only the liability of the alleged tort-feasor for a part of the damages was attempted to be adjudicated. The court should have determined in one suit *156 the entire damages, if any, for which the defendant was liable.
For the reasons stated the judgment is reversed and the cause remanded for an other trial.