Pacific Fire Ins. Co. v. Smith

• Citation: 219 S.W.2d 710
• Decision Date: 18 March 1949
• Docket Number: No. 2688.,2688.
• Parties: PACIFIC FIRE INS. CO. v. SMITH.
• Court: Texas Court of Appeals

Page 710

219 S.W.2d 710

PACIFIC FIRE INS. CO. v. SMITH.

No. 2688.

Court of Civil Appeals of Texas. Eastland.

March 18, 1949.

Rehearing Denied April 15, 1949.

Appeal from Comanche County Court; O. E. Rippetoe, Judge.

Action by the Pacific Fire Insurance Company against Mack D. Smith and another, to recover money paid on automobile liability policy. From the judgment, the plaintiff appeals.

Affirmed.

Holmes & Nicholson, of Comanche, for appellant.

Gean B. Turner, of Cleburne, for appellee.

COLLINGS, Justice.

This case was brought originally by appellant, Pacific Fire Insurance Company, against Mack D. Smith and the Pepsi Cola Bottling Company of Brownwood, Texas, to recover $327.12 which the insurance company had paid Smith as the insurer of his car for damage thereto sustained in a collision with a truck owned and operated by the Pepsi Cola Company. At the time of such payment, appellee Smith assigned and subrogated his claim for damages, to the extent of the payment, to appellant. Under the terms of the assignment appellee agreed to promptly and diligently present claim and if necessary, prosecute suit against any person or corporation liable therefor and to reimburse appellant to the extent of any net recovery. Appellant was also authorized thereby to enforce the collection of such claim in its own name. Thereafter appellee Smith and his wife entered into a written settlement agreement in which they, in consideration of $885 recited that they released the Pepsi Cola Company from all claims growing out of said collision, "both to person and property."

This is the third trial of the cause. The first trial was before the court without a jury and resulted in a judgment in favor of Pepsi Cola Company but against Smith for the amount claimed. Smith alone appealed and the case was reversed and remanded as to him but affirmed as to Pepsi Cola Company. See Smith v. Pacific Fire Insurance Company, Tex.Civ.App., 178 S.W.2d 170.

On the second trial before a jury, the trial court, at the conclusion of evidence, gave an instructed verdict in favor of Smith and rendered judgment thereon. The insurance company appealed and the case was again reversed and remanded. See Pacific Fire Insurance Company v. Smith, Tex.Civ.App., 202 S.W.2d 328.

On this the third trial of the cause, which was before a jury, the jury was unable to answer special issues Nos. 1, 2 and 3 inquiring as to the negligence of Pepsi Cola's truck driver and as to whether such negligence was the proximate cause of the collision and resultant damage to Smith's car. The jury did find, however, in answer to other issues submitted, (1) that $835 of the amount paid by Pepsi Cola Company to Smith was solely for injury to his wife and, (2) that the Pepsi Cola Company or its representative, knew that Smith had been paid for the damage to his automobile by his insurance company at the time said Pepsi Cola Company paid him the $885. The trial court received the verdict of the jury and entered judgment thereon for appellee Smith from which the insurance company brings this appeal.

Appellant contends in points one and two that both parties to every law suit are entitled to have their basic issues submitted and answered and that the trial court erred in receiving the verdict and entering judgment thereon when appellant's issues on negligence and proximate cause were not answered. In order to decide this question, it is necessary to consider what plaintiff alleges and undertakes to establish as the basis of his cause of action. Briefly stated, the allegations of appellant's amended original petition, in its first count which presents the only theory...