Linkenhoger v. American Fidelity & Cas. Co., A-4110

• Citation: 152 Tex. 534,260 S.W.2d 884
• Decision Date: 22 July 1953
• Docket Number: No. A-4110,A-4110
• Parties: LINKENHOGER v. AMERICAN FIDELITY & CASUALTY CO., Inc.
• Court: Supreme Court of Texas

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260 S.W.2d 884 152 Tex. 534 LINKENHOGER
v.
AMERICAN FIDELITY & CASUALTY CO., Inc. No. A-4110. Supreme Court of Texas. July 22, 1953.
Rehearing Denied Oct. 14, 1953.

[152 Tex. 535]

Page 885

Carrington, Gowan, Johnson & Walker and John L. Hauer, Dallas, for petitioner.

Klett, Bean & Evans, Lubbock, for respondent.

[152 Tex. 536] CULVER, Justice.

Petitioner, Linkenhoger, sued respondent, American Fidelity & Casualty Company, under the theory of liability pronounced in the Stowers case. ¹ It was alleged that in a former personal injury suit tried in 1948, Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308, the respondent-insurer, under a standard automobile liability policy undertook control of Linkenhoger's defense to the suit brought by Gilbert; that while in control of such defense respondent negligently rejected a number of reasonable settlement offers within the policy limits, with the result that Gilbert obtained judgment against Linkenhoger to the amount of $6,758.08 in excess of the policy limits, which excess was paid off by Linkenhoger after the judgment in that case became final.

The jury found respondent guilty of both ordinary and gross negligence, awarding to the petitioner the sum of $6,758.08 actual damages and an equal amount as exemplary damages.

The trial court entered judgment for petitioner on the verdict for the amount of actual damages, but denied him any recovery for exemplary damages. On appeal the Court of Civil Appeals reversed and rendered this cause, 257 S.W.2d 718, in favor of respondent, holding that the statute of limitation began to run at the time of the rejection of the last offer of settlement, and that this suit not having been brought within the period of two years thereafter, the same was barred. Petitioner contends that limitation did not begin to run until the judgment became final against him and that this suit having been filed within two years of that date, the same is not barred.

The trial court's judgment in Linkenhoger v. Gilbert was affirmed by the Court of Civil Appeals on May 25, 1949. Writ of error was refused by the Supreme Court on September 20, 1949, and the instant suit was filed on September 6, 1951.

The opinion in the case of Universal Automobile Insurance [152 Tex. 537] Co. v. Culberson, 126 Tex. 282, 86 S.W.2d 727, clearly supports petitioner's contention. Culberson had brought suit against his insurer for the entire judgment rendered against him, including that portion over and above the policy limit. The court held that as to such excess Culberson could maintain no action

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against the insurer until he had paid some portion thereof.

In Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929, 931, the rule is announced as follows:

'It seems to be the settled law of this state that limitation does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action.'

In a somewhat analogous situation it has been held that a cause of action for damages is not complete and will not accrue to an attaching creditor against one converting a part of the attached property until a sale of that...