*1 this jury, for new trial not inconsistent with hearing of tion, outside opinion. time the first for appellee testified Farm The carrier was insurance
his
GRIFFIN,
Dissenting opinion by
J.,
fact
had in
carrier
Bureau
GREENHILL, J., joins.
acres
acre for 90
per
paid appellee $20.00
for
of
or a total
of wheat
$1800.00
DISSENTING OPINION
The
he
sustained.
loss
appellee’s
available
policy was not
GRIFFIN, Justice.
stipulate the
refused to
counsel
is
of the defendant
cast
clause.
subrogation
a standard
contained
upon
ipsa loquitur.
of res
doctrine
shows
Nothing in this record
That
relied
pleaded
doctrine was not
this
represented
company was
ance
upon.
upon
Neither is
founded
bringing
appellee
cause or
plaintiff
admissions
interest. The
company to
suit on behalf
upon negligence.
relied
fact that
It is not shown
extent.
fire
vicinity
occurred in the
of the defend-
does
nor
company had notice of the suit
ant’s
proof
truck is
neg-
of
act of
recovery
provide for
ligence on the
part.
defendant’s
I there-
company.”
by the said
agree
fore
with the
of the Court
overruling the
Appeals.
by the trial court
Civil
The order
the action that court cannot 37, which
tained under Tex.R.Civ.Proc.
provides joinder parties “but unreasonably in manner
at time nor
delay the trial the case.” ux., Petitioners, Pat McGUIRE et plain have concluded v. party under necessary tiff’s insurer was a COMMERCIAL UNION INSURANCE COM- 39, Tex.R.Civ.P. and that the court YORK, Respondent. PANY OF NEW appeals holding. civil was correct in so loss, in By paying part plaintiff’s No. B-728. surer, pro Bureau, Texas Farm became Supreme Court of Texas. owner of the cause of Inter tanto action. July 10, 1968. Medical Professional
national Ins. Co. v. Christi,
Bldg, Corpus Rehearing Denied Oct. e.); ref’d n. r. Law, (1942).
Appleman, Insurance § payment itself creates expressed con
need not be in the insurance Puckett, City
tract.
Inc.
Lines,
Wichita
(1956).
is plain joined party
should been have Equipment,
tiff. See Petroleum Anchor Tyra,
Inc. (Tex.Sup.
1966). ap- of the court of civil
peals reversed and the cause remanded
GREENHILL, Justice. declaratory judgment This is respondent brought by obliga- Company Insurance to determine policy is- tions under *3 controversy Pryor. A. The Charles sued to in which a two-car collision arose from killed, Pryor, peti- insured, and Charles was seriously Billy was in- Pat McGuire tioner surviving wid- jured. Pryor, Pryor, wrongful filed a death ow of Charles and Billy Leonard McGuire herself, her Traylor minor on behalf of child, Pryor. parents Charles wrongful plaintiffs prayed The death for damages damages sought and also expenses funeral burial oc- services and Pryor. casioned death of Charles alleged neg- That suit McGuire’s proximate ligence was the cause of the ac- Pryor’s death, cident that resulted in Charles accident, at the Mc- and that time of acting employee was Leonard Traylor.
The insurance carrier of McGuire and Traylor willingness pay $10,- indicated Traylor 000 on behalf of wrongful settlement death of this compromise a settlement was pre- pared. represented The attorneys who company filed an also answer on McGuire, asserting behalf a cross-action alleged or counterclaim which that the ac- proximately negli- cident caused Pryor. gence deceased, of the Charles This named defendant counterclaim Karen Pryor, “individually and as community Sue partnership survivor of marital Pryor community estate of Sue Karen Pryor.” A. Charles following place took events also 28, 1965, day December that the Mc- were Guire answer counterclaim filed. Gibson, Harlan, Ochsner, Kinney & Mor- attorneys for McGuire filed motion ris, Morris, Amarillo, petition- Tom for S. requesting that the McGuire counterclaim ers. suit; be severed from original Hardie, Galatzan, Grambling, compromise & El Sims settlement between Underwood, Sutton, Paso, Wilson, Pryor Heare Karen Sue com- Amarillo, Wilson, for re- Berry, pany representing A. Traylor R. & filed spondent. with the court approval. for The dis- accident, granting but it court entered an order is contended Com- trict motion, severing the that the agree- Union operated ment and wrongful death suit from to dis- Thereafter, charge it trial court from its in- obligations agree- policy surance compromise issued to Charles approved the in- plaintiff was (because ment a minor agreement be- and the settlement volved) expressly included intended to agreed judgment. came an preserve the McGuire counterclaim and to Company Insurance Union insure McGuire claim would not type entry issued non-owner affected agreed judg- of an A. Charles ance to the above-mentioned ment in death patrolman. As indicated highway pertinent compro- *4 citation below, Pryor Mrs. was served mise agreement ap- which was during December 28 proved by the cross-action on the trial court are set out promptly mail- proceedings. She the above of the Appeals. substance, ed the citation to Commercial. 423 at 365 S.W.2d and 366. In it recognized dispute that a existed between duly received Commercial Union the parties liability as to and the amount her Pryor filed an answer on citation and thereof, any; if that although disclaiming behalf, right to refuse to but reserved its any liability on the and in pay any judgment defend the suit or Traylor, the Phoenix of Hartford Insur- Thereafter, Com- favor of the McGuires. ance Company and for McGuire [insurer as a declara- mercial Union filed this suit Traylor] willing was pay $10,000 in set- action, seeking a determina- tory judgment tlement; it therefore that in agreed was defend the obligated that it tion payment by consideration $10,000 pay any amount counterclaim or Pryor, individually Phoenix to Karen Sue against Karen might adjudged be and as community survivor, and to the oth- Pryor in the McGuires. Sue favor of plaintiffs er suit, in plaintiffs any re- trial court denied CommercialUnion Pryor et McGuire, al. Traylor released however, Appeals, lief. The Court of Civil Phoenix from all all claims the trial court reversed action of arising out of the death of Charles Union. rendered for Commercial then recites that it was It Mrs. as sur- held “when understood that the McGuires had asserted estate, community made vivor of damage counter-claims for because entered into the . . with- . injury Billy Pat McGuire. It continues knowledge out the or consent of Commer- to state that: company of cial Union she released said “ might claims she have had under . . . said counter-claim has been Pryor.” policy issued to Charles A. Com- by severed order of the Court . . York Union Ins. Co. New and shall remain pending separate Pryor, 423 S.W.2d cause . . . that this and settlement and the entered questions before concern this Court pursuance in way hereof shall in no af- compromise settlement the effect of a fect prejudice such counter-claim or which dis- any other cause may of action which poses conflicting arising claim out of one be person asserted by reason of purport- of a motor vehicle accident while injuries preserve sustained ing prejudice and not Pat Mc- conflicting collision, other is admitted in said all such claims insurance issued expressly pro- causes of action being Pryor Charles was in force on the date of tected and reserved.”
351 Baker, Tex. Rose 143 cause action. further understood “It is 202, 41 183 Rule agree- (1944). S.W.2d compromise settlement in grants judge the trial broad discretion ment, the fact of and severance hereof the matter of consolidation pursuance judgment entered Reynolds, Tex. in of causes. Pierce v. be or admissible shall never used re-, 198, 329 Hamilton v. (1959); parties S.W.2d of the evidence Hamilton, 511, 154 Tex. hereby.” leased (1955). death action stated, the As separate brought Pryor by Mrs. agree- above held that execution personal distinct cause of action from dis- operated to Pryor ment Karen Sue injury brought McGuires. obliga- charge from its dis- separate and Since these causes were policy. tions under tinct, being it could each such properly only if it tried were order for In controversy, prop- claims were two effect, it agreed judgment to have erly severable under 41. Kansas Uni- Rule Commercial must have interfered with versity King, Endowment Association v. Mc right to defend Union’s contract (1961). by prejudicing Guire claim Because it of otherwise depriving Union or result *5 the opinion of available defense. duplicitous identi- trials of interwoven or holdings Appeals includes might a cal make severance issues which agree provisions that the of inappropriate circumstances. under other the coun preserved ment which McGuire 41 cases construe Rule and the above We of deprived terclaim Commercial Union the the to sever authorizing trial court defenses, including several the McGuires’ counterclaim, agreed enter McGuire the counterclaim, compulsory failure a to assert pre- judgment in the the judicata, res and the to introduce the on docket serve the McGuire claim agreement as a settlement into evidence these for trial at a later date. Under the cannot defense to McGuire We circumstances, claim was agree the with not the assert a com- barred failure to that holdings because we are of the counterclaim, pulsory Run- as in Beach v. preju the agreement settlement not did nels, (Tex.Civ.App.1964, dice deprive or it of Commercial Union Munnell, 390 refused) Stringer writ the coun available defense to McGuire re- S.W.2d 484 terclaim. fused). find cases are unable to aof holding proper that the place, In the the severance first in judgment and the of entry counterclaim entry of of an the McGuire claim and the withdrawing original operates the suit agreed provide a de would not judgment defense provides a counterclaim 97(a) fense Rule failure to thereto, of language hold the and we compulsory assert a is counterclaim. construing rule Rule 41 the and the cases necessary determine whether Therefore, under preclude a result. such was, fact, the a com McGuire claim circumstances, had Commercial Union pulsory counterclaim, since trial court respect no defense available with discretionary power sever the compulsory a failure assert counter- of McGuire claim. Rule Rules Texas provisions claim of settlement Procedure, provides “any Civil claim preserv- agreed judgment agreement and against pro party a may be severed prejudice ing McGuire claim ceeded refers separately.” rule This it de- deprive a Union or of part of a which a severable cases. and Beach controversy Stringer one than fense under which involves more persuaded Pryor’s part, contributory negligence We are further preservation part, of the McGuire counter these McGuire’s like. Under deprive circumstances, claim did not Commercial Union could of an defense res lia- otherwise available of not be determinative the issues of judicata. As conten in a bility judicata we understand this be would not res tion, agreed preserved by it is that the would subsequent severance. suit liability- deprived determinative of the issues was not part judi- on the judicata by of McGuire thus res defense res the contractual arising pre- cata of a claim acci agreement same in the settlement dent, but serving contracted
away
this defense
agreement
settlement
Mc
preserving the
agreement
did
settlement
judicata
Guire claim. The doctrine of res
prejudice Commercial Union’s
otherwise
precludes subsequent
relitigation
agree
defense of the McGuire claim.
parties
question
same
of a
or isssue
law
ment
in evidence
would not be admissible
of fact which has
been determined
liability
an admis
on the issues of
or as
Swilley
competent jurisdiction.
court of
interest,
against
sion
even without
McCain,
(Tex.Sup.1964).
S.W.2d 871
be
providing,
contractual declarations so
However,
the issue of
not de
disputed
it
made in
cause was
settlement of
termined in the proceedings
led to
expressly
claims and
disclaims
approval
Traylor.
on the
Such
and the entry
agreed
a settlement
is not admissible
death action. The
otherwise,
an admission
interest or
judgment, which was based
com
on the
agreements
because to admit
would
promise
quoted
policy favoring
frustrate the
the settle
earlier,
“compromise
determined that
Ray,
ment of lawsuits. McCormick &
things
all
fair and reason
Ed.
(2nd
Texas Law of Evidence
*6
§
able and should be
hereby
and is
all re
1956);
629-632; Skyline
§§
Am.Jur.2d
spects approved.”
judgment
The court’s
Bradley,
(Tex.
Cab Co. v.
ggg Barnett, tury Lloyds refused). How- CORPORATION, NATIONAL SURETY
ever, Petitioner, principle operate will dis- charge obligations insurer’s policy company unless ac- MID- The FIRST NATIONAL BANK OF tually prejudiced deprived of a valid LAND, Texas, Respondent. defense the actions As of the insured. No. B-814. previously discussed, case this is not the here. every Commercial has de- Union Supreme Court of Texas. fense that would be available to it had July 17, 1968. compro- wrongful been death Rehearing 2,Oct. pending Denied and was still or settled mised the docket with party plaintiff action, authorized death
wrongful without her claim or settle
prosecute as long of Commercial Union
consent prejudice Commer- did not
her settlement coun-
cial defense of the Union’s
terclaim. Since deprive Com- that would Union defense the contractual available
have been without agreement preserving claim, we hold that oper- did death action discharge Union
ate to obligations under the A.
ance issued to Charles Ap-
peals is reversed
trial is affirmed. court
GRIFFIN, J., dissents.
DISSENTING OPINION
GRIFFIN, Justice. respectfully
I adopt dissent and
opinion of the here- my opinion in this case. compulsory
If a counter-claim can be
severed, then think it I was an abuse
discretion on the trial judge
sever in this case.