Garcia v. Villarreal, 650
| Decision Date | 24 November 1971 |
| Docket Number | No. 650,650 |
| Parties | Dora Torres GARCIA, Appellant, v. Margarita C. VILLARREAL, Appellee. |
| Court | Texas Court of Appeals |
Bonilla, Read, Rodriguez, Beckman & Bonilla, Lee Arnett, Corpus Christi, for appellant.
Kleberg, Mobley, Lockett & Weil, Henry Nuss, III, Corpus Christi, for appellee.
This is a suit for personal injuries alleged to have been received in an automobile accident. Defendant asserted a release as a bar to plaintiff's cause of action. Summary judgment was rendered in favor of the defendant that the plaintiff take nothing based on the release. Plaintiff has appealed.
In March 1969, plaintiff and the defendant were involved in an automobile accident. The plaintiff received personal injuries. At the time of the accident, the plaintiff was an employee of H. A. Ahrens and while acting in the course of her employment was driving an automobile owned by Ahrens. The Ahrens automobile sustained minor damage as a result of the accident.
A short time after the accident a Mr. Harold Jackson, a representative of the Farmers Insurance Group, negotiated a settlement in the amount of $53.06 which was the exact cost of repairs to the automobile. Mr. Jackson was a representative of defendant's liability insurance carrier. Jackson prepared a release and a draft and told Ahrens that both he and Mrs. Garcia (plaintiff) would have to sign the release and draft.
The summary judgment evidence is that Ahrens told the plaintiff that the release was a formality so that Ahrens could receive payment for his property damage to his vehicle. The plaintiff signed the release but refused to endorse the draft. She told Ahrens (at that time) that she was making a claim for her personal injuries which she received in the accident. The subject release was signed by the plaintiff on April 4, 1969.
Ahrens then called Jackson and told him that the plaintiff would not endorse the draft because she was making a claim for her personal injuries which she had received in the accident. Ahrens then returned the draft and the release to Jackson. He asked Jackson to make a new draft in the amount of $53.06 payable to H. A. Ahrens, individually. At first Jackson refused to do this.
Affidavits filed in response to the motion for summary judgment show that several months after Ahrens returned the draft and release to Jackson he contacted the Texas Insurance Commission and put pressure upon the Farmers Insurance Group to issue a new draft payable to him individually in the amount of $53.06 (the amount of damage to his vehicle). Thereafter, on November 18, 1969, Farmers Insurance Group issued a new draft payable to Ahrens individually in the amount of $53.06. Ahrens endorsed this draft and cashed it.
Plaintiff's supplemental affidavit stated that no representative of Farmers Insurance Group was present at the time the release was signed or at the time that plaintiff refused to endorse the draft. Plaintiff stated that she has never had any conversation with any representative of Farmers Insurance Group or with the defendant. She stated that she has never requested that the $53.06, recited as consideration in the release, be paid to Mr. Ahrens, nor has she ever authorized any person to make payment of this amount to Ahrens. She stated that she has never received any consideration or any money whatsoever in connection with the release and no one has ever offered to pay her any money or any other consideration in connection with the release. She stated that she was driving Ahrens' vehicle in the course of her employment at the time of the accident. She stated that Ahrens never suggested that she was responsible for the damages to his vehicle nor has he ever asked the plaintiff to pay for any damages to his car as a result of the accident.
The court in granting the summary judgment, for the defendant found that the release '. . . was signed by Plaintiff for valuable consideration, to-wit: A detriment to the Defendant in the amount of $53.06 which Defendant paid to H. A. Ahrens in reliance upon said Release, and a benefit to Plaintiff in paying Plaintiff's obligation to H. A. Ahrens as bailee, either of which constitute valuable consideration for said Release as a matter of law, . . .'
The question here on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. The summary judgment granted by the trial court should be affirmed only if the summary judgment record establishes a right thereto on behalf of the defendant as a matter of law. Gibbs v . General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). The burden of proof is on the movant and all doubts as to existence of a genuine issue as to material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965).
The summary judgment was granted on the basis of the release admittedly signed by the plaintiff. We must therefore determine whether the summary judgment evidence establishes as a matter of law that there is no genuine issue as to one or more of the essential elements that makes up the validity of the release.
They contend that the summary judgment does not conclusively establish (1) the validity of the release, (2) the offer and acceptance, (3) the communication of the assent, (4) the delivery of the release, (5) the existence of a consideration,...
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