Garrett v. Mathews

• Decision Date: 16 January 1961
• Docket Number: No. 7011,7011
• Citation: 343 S.W.2d 289
• Parties: Clarence GARRETT, Appellant, v. George G. MATHEWS et al., Appellees.
• Court: Texas Court of Appeals

Page 289

343 S.W.2d 289

Clarence GARRETT, Appellant, v. George G. MATHEWS et al., Appellees.

No. 7011.

Court of Civil Appeals of Texas, Amarillo.

Jan. 16, 1961.

Rehearing Denied Feb. 6, 1961.

Folley, Snodgrass & Calhoun, Amarillo, V. G. Kolius, Amarillo, of counsel, for appellant.

Culton, Morgan, Britain & White, Amarillo, Richard L. Cazzell, Amarillo, of counsel, for appellees.

CHAPMAN, Justice.

This suit was instituted in the 47th District Court of Potter County by Clarence Garrett against George G. Mathews and the Checker Cab Co. seeking recovery for damages to plaintiff's automobile resulting from a collision between his automobile and the cab driven by George G. Mathews and owned by the Checker Cab Co.

There had been a previous suit between these parties, based upon the same collision, in which plaintiff, Clarence Garrett, recovered an agreed judgment in the amount of $1,090 for personal injuries sustained by him in that collision. The defendants pleaded the judgment in the same court for personal injuries as a bar to the subsequent cause of action asserted for damages to his automobile and asked for summary judgment based thereon. The trial court sustained the plea of bar and granted a summary judgment that plaintiff take nothing as against the defendants.

Subsequent to the filing of his suit for personal injuries and before the agreed judgment was entered, appellant Garrett was paid for the damages to his automobile by his insurance carrier, Mid-Continent Ins. Co. and a contract was entered into between them by which the insurance carrier was subrogated to all the rights appellant had against appellee and which provided the insurance company might bring suit against defendants in the name of Clarence Garrett for recovery of damages to appellant Garrett's automobile.

Appellant urges this case as one of first impression in Texas. It is so nearly a 'white horse' case to that of Cormier v. Highway Trucking Company et al., Tex.Civ.App., 312 S.W.2d 406 (No writ history) that wo do not consider it a case of first impression. In that case Chief Justice Murray of the San Antonio Court of Civil Appeals quoted with approval the appellant's statement in that case of the question there presented as follows:

'May a Plaintiff who receives injuries to his person and damages to his property in a single occurrence bring two separate actions for damages against the same Defendant or Defendants, one for the injuries to his person and one for the injuries to his property without a recovery in one barring a recovery in the other?'

By brief appellees state without challenge from appellant either in oral argument or reply brief that they had determined with certainty through counsel in the Cormier case 'that subrogation was also involved therein and that the real party in interest was not Matthew Cormier as reflected by the case style, but was, in fact, an insurance company, exactly as in this case now before the court!'

As clearly pointed out by Justice Murray in the Cormier case there is clearly a majority and a minority rule in the United States on this question. There are two early Texas cases which...