Smith v. Pacific Fire Ins. Co.

• Decision Date: 21 January 1944
• Docket Number: No. 2436.,2436.
• Citation: 178 S.W.2d 170
• Parties: SMITH v. PACIFIC FIRE INS. CO.
• Court: Texas Court of Appeals

178 S.W.2d 170

SMITH v. PACIFIC FIRE INS. CO.

No. 2436.

Court of Civil Appeals of Texas. Eastland.

January 21, 1944.

Rehearing Denied February 18, 1944.

Appeal from Comanche County Court; H. H. Lockridge, Judge.

Suit by Pacific Insurance Company against Mack D. Smith and another to recover money paid on automobile liability policy because of double collection. From an adverse judgment, named defendant appeals.

Reversed and remanded.

Penn J. Jackson, of Cleburne, for appellant.

Y. W. Holmes, of Comanche, for appellee.

LESLIE, Chief Justice.

The Pacific Fire Insurance Company instituted this suit against Mack D. Smith and the Pepsi-Cola Bottling Company, a firm composed of Milton Ruth and Wesley C. Ruth, to recover $327.12. Defendants denied liability. The trial before the Court without a jury resulted in a judgment in favor of Pepsi-Cola, but against Smith for the amount claimed. He alone appeals.

There are no findings of fact and conclusions of law, and Smith alone briefs the case in this court.

The Insurance Company issued Smith an insurance policy contracting to indemnify him for damages above $50 to his Dodge automobile resulting from the negligence of a third person. On January 23, 1940, there was a collision between his car and Pepsi-Cola's truck, driven by its employee, M. S. White, which resulted in damage to the car. Smith presented to the Insurance Company a $377.12 claim for the alleged injuries, and after deducting said $50, the Insurance Company paid Smith the sum of $327.12 and took from him an assignment of Smith's claim, thus expressly subrogating itself to such rights as Smith had against the Pepsi-Cola Company under the facts of the collision, together with the right to institute suit and collect the claim.

Smith made the $327.12 settlement with the Insurance Company on February 3, 1940, and thereafter on May 2, 1940, he settled with the Pepsi-Cola Company for $885 for any damages growing out of said accident of January 23rd and also executed to the Pepsi-Cola Company a release of the claim. Smith joined his wife in the execution of this release, and among other matters that instrument recited that it was a "release and discharge of the Pepsi-Cola Bottling Company and/or W. C. Ruth, and/or Milton Ruth, and/or Marvin S. White from any and all actions * * * claims and demands * * * on account of or in any way growing out of any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 23rd day of January, 1940 * * * involving my 1940 Dodge in which my wife was an occupant * * *." The release further recited that it covered "all claims and demands * * * growing out of said accident or its results both to person and property."

On the payment of the $327.12 to Smith on February 3, 1940, he executed to the Insurance Company an instrument designated "Loan Receipt or Subrogation Agreement", wherein the Company was subrogated to all the rights and remedies then existing in favor of Smith as against the Pepsi-Cola Company. That instrument did not mention the Dodge car or any other particular property, but doubtless the instrument pertained to the car. At that time he also made proof of loss and delivered same to the Insurance Company. It contained like stipulations of subrogations and authorized suit by Insurance Company in its name, etc.

After the Insurance Company paid Smith the $327.12 on February 3, 1940, it wrote the Pepsi-Cola Company July 15, 1940, demanding that the Pepsi-Cola Company pay or reimburse it for the $327.12 it had paid Smith under the circumstances.

Two days later—July 17th—Pepsi-Cola in response to said letter wrote the Insurance Company, that without any knowledge on its part of the $327.12 settlement of February 3rd, it had made full settlement on May 2, 1940, with Smith for all injuries by reason of the collision of his Dodge car with its truck and suggested to the Insurance Company that it take the matter up direct with Smith.

Acting on such suggestion, the Insurance Company wrote Smith about the matter, and concerning its negotiations with him about the same the Insurance Company alleges in its petition:

"That upon taking the matter up with the defendant Mack D. Smith, he contended he had not been paid any sum whatsoever covering damages to said automobile, and although demand has been made upon both said defendants for the payment hereof, they have each failed and refused and still fail and refuse to pay the same, or any part thereof, to plaintiff's damages in said sum of Three Hundred Twenty-Seven and 12/100 Dollars ($327.12.)

"Wherefore Plaintiff prays * * * judgment jointly and severally against said defendants * * *."

The Pepsi-Cola Company answered, denying any negligence on its part, or that of their driver, and especially alleged that the damage to Smith's car resulted from his contributory negligence in different ways, namely, (1) driving at unlawful, excessive and reckless speed under the circumstances, (2) driving in excess of the lawful rate of speed at the time and place, (3) failing to keep proper lookout, and (4) in attempting to pass defendant's truck without signaling his intention to do so.

Pepsi-Cola further alleges full settlement of the claim on May 2, 1940, without notice or knowledge on its part of the $327.12 settlement with Mack D. Smith on February 3, 1940.

The defendant Smith answered by special exceptions, general denial,...