delivered the opinion of the Court.
Petitioner, Linkenhoger, sued respondent, American Fidelity & Cаsualty Company, under the theory of liability pronounced in the Stowers case.
(1)
It was alleged that in a former personal injury suit tried in 1948, (Linkenhoger v. Gilbert,
The jury found respondent guilty of both ordinary and gross negligence, awarding to the petitioner the sum of $6,758.08 actual damages and an equal amount as exemplary damages.
The trial cоurt entered judgment for petitioner on the verdict for the amount of actual damages, but denied him any recovery for exemplary damages. On appeal the Court of Civil Appeals reversed and rendered this cause,
The trial court’s judgment in Linkenhoger v. Gilbert was
affirmed
by the Court of Civil Appeals on May 25, 1949,
The opinion in the case of Universal Automobile Insurance
*537
Co. v. Culberson et al.,
In Williams et al v. Pure Oil Co.,
“It seems to be the settled law of this state that limitatidn does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdictiоn from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action.”
In a somewhat analogous situation it has been held that a cause of action for damages is not complete and will not accrue to an attаching creditor against one converting a part of the attached property until a sale of that portion remaining shows that the creditor has not obtained full satisfaction of his judgment. Humble Oil & Refining Co. v. Andrews,
In Deaton v. Rush,
Respondent asserts that “a cause of action based upon the negligence of the agent of a party accrues at the time of the wrongful act and consequently limitation commences to run at that time and not at the time of the ascertainmеnt of damages, if any,” citing Quinn v. Press,
Generally speaking the rule so announced is correct, but *538 before the act becomes wrongful there must be an invasion of the rights of the plaintiff.
In Restatement, Torts, Sec. 899 (C. 1939) it is stated:
“A tort is ordinarily not complete until there hаs been an invasion of a legally protected interest of the plaintiff. Thus where one makes a fraudulent misrepresentation to another, the tort is nоt complete until the other acts thereon to his detriment.”
In the Quinn case, supra, the suit was one for fraud based on false representations as to the value of certain property. The falsity vel non of the representations was a fact that could have been presently ascertained. Thе court merely held that the cause of action accrued at the time the fraud is perpetrated even though “the alleged injured party may not with certainty know at the time the fraud is committed or at the time it is discovered just how much, if any, in dollars and cents he has been damaged”. No fraud has been perрetrated, however, until the plaintiff has acted in reliance upon false representations. American Indemnity Co. v. Ernst & Ernst,
In 54 C.J.S., Limitations of Actions, Sec. 168, the rule is set forth: “The test to determine when the statute of limitations begins tо run against an action sounding in tort is whether the act causing the damages does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff.”
A very good illustration of the point is to be found in the case of City of San Antonio v. Talerico,
*539 The petitioner, Linkenhoger, could not have maintаined this present suit until such time as his liability and the extent thereof had been determined by a final judgment in the former case. Until then his rights had not been invaded by respondent’s failure to accept the terms of settlement offered and the tort was not complete.
We sustain the petitioner’s point and hold that limitation did not bеgin to run in any event until the judgment in the former case became final and, therefore, that this cause of action is not barred by the two-year statute of limitatiоn.
The only other point raised is on the action of the trial court in rendering judgment against petitioner on his claim for exemplary damages notwithstanding the jury’s vеrdict. Petitioner submits that by reason of “its lackadaisical preparation of said case for trial, its failure to arrange for Edgar Linkenhoger’s presеnce at the time and its refusal to accept any of said Gilbert’s compromise settlement offers or to make any counter offer of settlemеnt in excess of $5,000.00, the defendant, American Fidelity & Casualty Company was guilty of gross negligence toward your plaintiff Linkenhoger.” We think such failures and omissions would not be sufficient to constitute gross negligence. Even so petitioner refers to nothing in the record that would indicate a “lackadaisical” preparation unless it be the failure to have the defendant Linkenhoger present at the trial for “psychological” reasons. Linkenhoger was not a witness who had knowledge of any of the facts and his presence could have had no more than some moral suasion on the jury. In the only case cited by petitionеr on this point, Texas Pac. Coal & Oil Co. v. Robertson,
The judgment of the Court of Civil Appeals is accordingly reversed and that of the trial court in all things affirmed. It is so ordered.
Opinion delivered July 22, 1953.
Rehearing overruled October 14, 1953.
Notes
G. A. Stowers Furniture Co. v. American Indemnity Co.,