Maryland Motor Car Ins. Co. v. Haggard

• Decision Date: 07 May 1914
• Docket Number: (No. 1331.)
• Citation: 168 S.W. 1011
• Parties: MARYLAND MOTOR CAR INS. CO. v. HAGGARD.
• Court: Texas Court of Appeals

168 S.W. 1011

MARYLAND MOTOR CAR INS. CO. v. HAGGARD.

(No. 1331.)

Court of Civil Appeals of Texas. Texarkana.

May 7, 1914.

Error to Tarrant County Court; Chas. T. Prewett, Judge.

Action by F. A. Haggard against the Maryland Motor Car Insurance Company. There was a judgment for plaintiff, and defendant brings error. Reversed and rendered for defendant.

The plaintiff in error issued a policy of insurance to defendant in error on May 7, 1913, in the sum of $600, insuring a certain automobile against loss by fire or damage by collision with any other automobile or vehicle. On January 1, 1913, while the insurance was in force, a fire engine of the fire department of the city of Ft. Worth collided with defendant in error's automobile, causing damage to it. Defendant in error brought this suit on the policy to recover $400 as the amount of the damage sustained. The policy contained the following clause:

"6. If this company shall claim that the damage was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving payment."

The plaintiff in error pleaded, as a defense, that defendant in error, in total disregard of the above-mentioned clause of the policy, did, in February, 1913, preclude the plaintiff in error from its right of subrogation by executing a full and complete release to the city of Ft. Worth of all damages occasioned by the injury to his automobile, in consideration of the payment of $100. The defendant in error made replication to the alleged defense, admitting that he made claim to the city for items of damage consisting of loss of time in his business occasioned him by being deprived of the immediate use of his automobile, and accepted $100 in payment of same, but alleged that it was not a settlement of the damages to the automobile, and was so understood not to be a settlement of that item of damage as claimed against the insurance company, and that the cause of action on the policy was specially reserved, and that the recitals in the written release of relinquishment of all claims for damages was a mistake. Defendant in error further replied that plaintiff in error waived the right to subrogation.

It was proven that the defendant in error paid out $264.90 to repair the damage to his automobile. In February, 1913, defendant in error executed a written release to the city of Ft. Worth, reciting that in consideration of the payment of $100 by the city he relinquished and released the city from "all claims of every character that I have or may have by reason of injuries and damages sustained by me on the 1st day of January, 1913, caused by the fire department truck colliding with one Flanders automobile owned by myself, said collision occurring at Fourth and Throckmorton streets in the city of Ft. Worth on January 1, 1913," and "this release is intended to cover all damages and injuries occasioned or that may arise therefrom directly or indirectly." In respect to the release defendant in error testified, in substance, that in February, 1913, he filed a claim with the city for items of damages consisting of loss of time in his business, due to the deprivation of use of his automobile occasioned by the tort of the city, and that the city paid him $100 on the claim, and he accepted it. At the time of filing the claim and accepting the money defendant in error did not know, he says, that the policy contained the clause in question, but that he told the city claim agent that he had the policy of insurance and was expecting the insurance company to pay the repair bill and that he did not read the release before signing it. He did not testify that in the settlement he reserved any right to claim damages to the automobile. Mr. Wren, claim adjuster for the city, testified in behalf of defendant in error, in substance, that defendant in error filed a written claim for damages against the city, and that after taking the matter up with...