Robertson v. Melton's Estate, 6148
| Decision Date | 31 October 1957 |
| Docket Number | No. 6148,6148 |
| Citation | 306 S.W.2d 811 |
| Parties | Rollen C. ROBERTSON, Appellant, v. ESTATE of O. E. MELTON, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Justice, Justice & Kugle, Athens, for appellant.
Spruiell, Lowry, Potter & Laster, Tyler, for appellee.
On January 25, 1956, in Henderson County, in a collision between automobiles which they were driving, O. E. Melton was killed and appellant, Rollen C. Robertson, was injured. Two separate and distinct damage suits resulted. Both were filed in the district court of Henderson County. One was the case at bar, in which appellant sued 'The Estate of O. E. Melton, Deceased,' for $37,836.80, alleging that Ethel V. Melton, widow of the decedent, had theretofore qualified as community administratrix of said estate. The other was a joint suit by Mrs. Melton and Ronald Melton, a minor son of the decedent, against appellant, for $94,000. It was styled Ethel Melton v. Rollen Robertson, and was numbered 6904, on the docket of the court. The case at bar was not filed until some months after the Meltons' suit had been settled by agreement and disposed of by judgment. When it was instituted, Mrs. Melton, as administratrix of the community estate of herself and her deceased husband, having first answered, filed a verified motion for summary judgment. She pleaded both that the judgment in cause No. 6904, the suit she and her son filed against appellant, is res judicata of all matters which appellant seeks to litigate in the case at bar and that by estoppel it is conclusive of all issues tendered by appellant's pleadings in this suit. And she particularly pleaded that Rule 97(a), Texas Rules of Civil Procedure, bars appellant from any recovery herein, since he did not counterclaim in the suit she and her son filed against him. The motion for summary judgment was heard and granted, and judgment was rendered that appellant take nothing by his suit. Appellant duly perfected his appeal to the Court of Civil Appeals at Dallas, the proper court, and the case was then transferred to this court by the Supreme Court.
In their petition in their suit against appellant, Mrs. Melton and her son alleged a variety of ways in which they claimed appellant had been negligent and had thereby proximately caused the collision and Mr. Melton's death. The only pleading filed in the case by or on behalf of appellant was an answer which consisted of but a general denial. The judgment in the cause approved a settlement agreement that had been arrived at and, pursuant to the agreement, awarded damages in favor of the Meltons and against appellant in the amount of $3,000.
Although it was all done in his name, appellant did not personally participate in defending or settling the case. The defense was arranged for and the settlement was agreed to by United States Fidelity and Guaranty Company, which had in force on appellant's automobile at the time of the collision an indemnity policy of automobile insurance. Appellant was not consulted about the settlement nor even advised before disposition of the case that settlement negotiations were under way, and he was not subsequently called upon to ratify or confirm the settlement and judgment.
The policy of insurance that brought the insurance company into the picture contained the following provisions, among others:
'With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall: (a) defend any suit against the Insured alleging such injury, sickness or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.'
In his petition in the case at bar, appellant has, of course, alleged various ways in which he claims the decedent, O. E. Melton, was negligent and proximately caused the collision.
The record does not expressly disclose the legal theory on which the trial court based the summary judgment in the case at bar, but when considered as a whole, it leaves little room to doubt that the judgment was based on the theory that Rule 97(a), supra, required appellant to counterclaim in the suit Mrs. Melton and her son filed against him, if he desired to sue at all. Such, in any event, is the theory which appellee says formed the basis of the judgment, and it is the theory on which appellee primarily, if not altogether, relies to support the judgment.
We think Rule 97(a) is inapplicable, since Mrs. Melton and her son sued appellant in their individual...
To continue reading
Request your trial
-
Valdez v. Gill
...in which the cross-plaintiff, the party asserting the cross-claim, is no longer a defendant. In Robertson v. Melton's Estate, 306 S.W.2d 811 (Tex.Civ.App.--Beaumont 1957, writ ref'd), the court We think the case of Heights Funeral Home v. McClain, Tex.Civ.App., 288 S.W.2d 839, 843, decided ......
-
Lesbrookton, Inc. v. Jackson, 07-89-0058-CV
...97(a) is unavailable as a basis for the defenses, Price v. Couch, 462 S.W.2d 556, 558 (Tex.1970); Robertson v. Melton's Estate, 306 S.W.2d 811, 813 (Tex.Civ.App.--Beaumont 1957, writ ref'd), unless, as Stuckey contends, Attar was acting on behalf of Lesbrookton in that cause. See Stevenson ......
-
Corpus Christi Bank & Trust v. Cross, 1390
...Company v. Sullivan, 518 S.W.2d 420, 427 (Tex.Civ.App. Corpus Christi 1974, writ ref'd n. r. e.); Robertson v. Estate of Melton, 306 S.W.2d 811, 813 (Tex.Civ.App. Beaumont 1957, writ ref'd); Heights Funeral Home v. McClain, 288 S.W. 839, 843 (Tex.Civ.App. Beaumont 1956, no When the trial co......
-
Encore Enters., Inc. v. Borderplex Realty Trust
...in suit against trustee in his representative capacity arising out of the same transaction); Robertson v. Estate of Melton, 306 S.W.2d 811, 813 (Tex.Civ.App.--Beaumont 1957, writ ref'd) (tort claim against widow in her representative capacity as administratrix of estate was not compulsory c......