Linkenhoger v. American Fidelity & Cas. Co.

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

Page 884

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.

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

Klett, Bean & Evans, Lubbock, for respondent.

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 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 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 portion remaining shows that the creditor has not obtained full satisfaction of his judgment. Humble Oil & Refining Co. v. Andrews, Tex.Civ.App., 285 S.W. 894.

In Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, a vendor's cause of action for recovery of certain land, the deed to which was obtained by fraud, is said not to accrue until after the cancellation of such deed, the reason being that such action could not be maintained until the deed had been set aside. Similarly the right of recovery of funds which were wrongfully paid under garnishment proceedings will not accrue until final judgment in the main case and consequently limitation will not begin to run theretofore. T. B. Meeks Co. v. Hudgins, Tex.Civ.App., 22 S.W.2d 764.

Respondent asserts that 'a cause of action based upon the negligence of the agent of a party accrues at the time of the wrongful act and consequently limitation commences to run at that time and not at the time of the ascertainment of damages, if any,' citing Quinn v. Press, 135 Tex. 60, 128 A.L.R. 757, 140 S.W.2d 438; American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763 (wr. ref.).

Generally speaking the rule so announced is correct, but before the act becomes wrongful there must be an invasion of the rights of the plaintiff.

In Restatement, Torts, Sec. 899 (C. 1939) it is stated:

'A tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff. Thus where one makes a fraudulent misrepresentation to another, the tort is not complete until the other acts thereon to his detriment.'

In the Quinn case, supra (135 Tex. 60, 140 S.W.2d 440), the suit was one...