Sims v. Auringer, 15805
| Decision Date | 05 April 1957 |
| Docket Number | No. 15805,15805 |
| Citation | 301 S.W.2d 286 |
| Parties | Andrew SIMS, Appellant, v. Arthur AURINGER, Appellee. |
| Court | Texas Court of Appeals |
Mullinax & Wells and Otto B. Mullinax, Dallas, for appellant.
Cantey, Hanger, Johnson, Scarborough & Gooch, and J. A. Gooch, Fort Worth, for appellee.
Andrew Sims received personal injuries pursuant to an automobile collision. He selected as his treating physician Dr. Arthur Auringer. Subsequently plaintiff Sims sued the third party tort-feasor for damages on account of the accident, and a little later he sued the defendant Auringer for damages as the result of alleged malpractice in the treatment of the injuries resulting from the accident. While both suits were pending the plaintiff agreed to settle his claim against the tort-feasor. He dismissed his suit and executed a common-law release. Defendant then filed a motion for summary judgment in plaintiff's suit for malpractice. The trial court entered summary judgment as prayed for. It was from this judgment that plaintiff perfected his appeal.
Judgment affirmed.
The material facts in this case are indistinguishable from those in the case of Borden v. Sneed, Tex.Civ.App.Waco 1956, 291 S.W.2d 485, writ ref., n. r. e. In each instance the plaintiff knew, at the time he settled his claim against the tort-feasor who had injured him, that he had a cause of action against the defendant for malpractice. In fact his several suits against these parties were pending at the very time he settled with the tort-feasor. In the present instance there is no question but what the instrument executed was a legal release which operated to fully and finally discharge the tort-feasor, and by the weight of authority, the plaintiff's release of the one party on account of his original injury operated to bar any further action by him against the defendant. See the authorities under Borden v. Sneed, supra.
A difference does exist in the instant case from that of the Borden v. Sneed case. In such case the release which had been executed by the plaintiff had been pleaded by the defendant as an affirmative defense. In the instant case defendant's only pleading, as of the time he filed and obtained a hearing of the motion for summary judgment, was a general denial of the plaintiff's allegations. The motion for summary judgment does affirmatively set the release up, however, and in substance the motion was predicated upon...
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McMillen v. Klingensmith
...release an unnamed negligent doctor, citing three Texas cases which had followed the rule. Those cases are, Sims v. Auringer, 301 S.W.2d 286 (Tex.Civ.App.1957, writ ref. n.r.e.); Borden v. Sneed, 291 S.W.2d 485 (Tex.Civ.App.1956, writ ref. n.r.e.); Phillips v. Wright, 81 S.W.2d 129 (Tex.Civ......
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Cannon v. Pearson, A-10019
...81 S.W.2d 129, writ dismissed; Borden v. Sneed, Tex.Civ.App., 291 S.W.2d 485, writ refused, no reversible error; Sims. v. Auringer, Tex.Civ.App., 301 S.W.2d 286, writ refused, no reversible error. For an excellent review of Texas decisions relating to release of joint tort-feasors, in which......
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Rough v. Southwestern Bell Tel. Co.
...claims. Liberty Mutual Ins. Co. v. Martinez, 407 S.W.2d 272 (Tex.Civ.App., El Paso 1966, no writ); Sims v. Auringer, 301 S.W.2d 286 (Tex.Civ.App., Fort Worth 1957, writ ref'd n.r.e.); Borden v. Sneed, 291 S.W.2d 485 (Tex.Civ.App., Waco 1956, writ ref'd n.r.e.); Westfall v. Lorenzo Gin Co., ......
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McMillen v. Klingensmith
...81 S.W.2d 129; writ dismissed; Borden v. Sneed, Tex.Civ.App., 291 S.W.2d 485, writ refused, no reversible error; Sims v. Auringer, Tex.Civ.App., 301 S.W.2d 286, writ refused, no reversible error. For an excellent review of Texas decisions relating to release of joint tort-feasors, in which ......