Broussard v. Austin Road Co.
| Decision Date | 17 March 1955 |
| Docket Number | No. 12817,12817 |
| Citation | 276 S.W.2d 912 |
| Parties | Joseph BROUSSARD, Appellant, v. AUSTIN ROAD COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Walter E. Ressel, Galveston, for appellant.
Bondies & Flahive and Tom R. Hopkins, Dallas, for appellee.
This suit was originally filed by appellant in the County Court of Galveston County, to recover damages to his automobile alleged recover damages to his automobile alleged an automobile owned by appellee. In the trial court appellee, in addition to a general denial pleaded an accord and satisfaction supported by a valuable consideration entered into between the parties to the lawsuit prior to the institution thereof. By supplemental petition, appellant tendered into court the sum of $100 which he admitted having accepted from appellee in settlement of the claim made the bases of the suit, but alleged a lack of authority to settle the same because of a previous agaignment of such claim by him to National Automobile and Casualty Insurance Company by way of a subrogation agreement. Appellant further alleged knowledge of such assignment on the part of appellee at the time of the settlement, and that this suit was brought in the name of the appellant for the use and benefit of the assigncee insurance company which had never released its claim. With the issues thus joined, appellee filed a motion for summary judgment, accompanied by the affidavit of Robert A. Fanning wherein on oath affiant stated that as a representative of appellee Austin Road Company he forwarded to appellant and to his attorney Walter E. Ressel, a draft in the sum of $100 incorporating a release of any and all claims against said appellee on account of the collision made the basis of this suit. Attached to the affidavit was a photostatic copy of the draft, incorporating the complete release, and showing the endorsement of appellant and his attorney, and payment by the bank upon which it was drawn. The affidavit further recited that Walter E. Ressel, who is attorney for the appellant in this litigation, represented himself as attorney representing all parties at interest in the claim arising out of the collision here involved, and as being the attorney with whom the settlement was negotiated and consummated. This motion for summary judgment was answered by appellant by unsworn pleading asserting the existence of issues of fact as to (1) the identity of the real party plaintiff, (2) the fact of the assignment by appellant to National Automobile and Casualty Insurance Company, (3) the authority of appellant to execute the release pleaded, and (4) the authority of Walter E. Ressel to execute he release pleaded.
This appeal is from the action of the trial court in granting appellee's motion for summary judgment. The one point of error presented is premised upon the proposition that appellee did not discharge the burden of showing that there existed no...
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...22), and in consequence were in no position to argue the existence of a genuine issue of fact at said trial. Broussard v. Austin Road Co., Tex.Civ.App., 276 S.W.2d 912. Our discussion may be somewhat shortened by a consideration of appellants' point and answering counterpoint with respect t......
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Valley Stockyards Co. v. Kinsel
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