Cook v. Superior Insurance Company
| Decision Date | 03 February 1972 |
| Docket Number | No. 7319,7319 |
| Citation | 476 S.W.2d 363 |
| Parties | Curtis COOK, Appellant, v. SUPERIOR INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Woodruff, Kendall & Smith, Dallas, for appellant.
Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
In 1963, appellant obtained a judgment against one Willie J. Sallie for $15,465.46. It was affirmed in Sallie v. Cook, 403 S.W.2d 509 (Tex.Civ.App., Dallas, 1966, no writ), to which we refer for a more detailed statement. Appellee, Superior Insurance Company, was the liability insurer of Sallie and, as such, paid its policy limit of $5,000 plus $744.93 to appellant. A total of $10,465.46 plus 6% Per annum from June 13, 1966, remains unpaid. A writ of execution issued on the judgment was returned unsatisfied.
Appellant filed for a writ of garnishment alleging that he had made a firm offer of settlement prior to the trial to the attorneys employed by Superior Insurance Company in the amount of $5,000, which was within the limits of the liability policy issued to Mr. Sallie, and that such offer was rejected.
'Plaintiff and Garnishor has reason to believe and does believe and here alleges that Garnishee, Superior Insurance Company, is indebted to Willie J. Sallie in an amount at least equal to the unpaid judgment together with interest.'
Appellee, Superior Insurance Company, answered it 'is not now nor was it at the time that said Writ of Garnishment was served, indebted in anything or amount to Defendant, Willie J. Sallie.' The trial court granted a summary judgment for appellee.
We have not been cited to any Texas case which has allowed an injured party to proceed directly against the insurer on a judgment held against the insured for an amount in excess of the policy limits, and our independent research has not revealed such a case. The famous case of G. A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex.Com.App.1929, holdings approved), gave an insured a cause of action against his insurer for negligent failure to settle within the policy limits.
The cause of action therein granted was one of tort. 'It is difficult to see upon what ground it (the insurance company) could escape responsibility when its Negligence resulted in damage to the party it had contracted to serve.' (15 S.W.2d at p. 547, emphasis supplied)
In abolishing the repayment rule, Justice Reavley, speaking for the court in Hernandez v. Great American Ins. Co. of N.Y., 464 S.W.2d 91, 94 (Tex.Sup.1971) reiterated the fact that the Stowers' cause of action is in tort 'grounded on negligence' and lies to repair harm to the insured, not the third party. He continued, 'The holder of the former judgment benefitted from the tort to the extent of the harm to the insured.'
It is stated in Waples-Platter Grocer Co. v. Texas & P. Ry. Co., 95 Tex. 486, 68 S.W. 265 (1902): 'It is well settled that a demand growing out of a tort is not subject to garnishment.'
In Shrophire v. Alvarado State Bank, 196 S.W. 977, 978 (Tex.Civ.App., Fort Worth, 1917, no writ), the court, quoting from a text, said:
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