Wardy v. Casner

• Decision Date: 24 June 1937
• Docket Number: No. 3564.,3564.
• Citation: 108 S.W.2d 772
• Parties: WARDY v. CASNER et al.
• Court: Texas Court of Appeals

108 S.W.2d 772

WARDY v. CASNER et al.

No. 3564.

Court of Civil Appeals of Texas. El Paso.

June 24, 1937.

Rehearing Denied September 16, 1937.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by W. A. Wardy, doing business as Wardy & Son, against R. S. Casner and another. From the judgment, plaintiff appeals.

Reversed and rendered in part and affirmed in part.

Appellant's summary of the pleadings in this case is conceded by appellees to be substantially correct. It is adopted and reads:

"In his original petition plaintiff sought recovery against defendant Casner for damages amounting to $1,250 sustained to his truck in a collision with an automobile belonging to defendant, allegedly resulting from the negligence of defendant's driver. Defendant Casner answered by general denial, plea of contributory negligence, and special pleading to the effect that there was an accord and satisfaction in that defendant agreed to have plaintiff's truck repaired and that the repairs had been made pursuant to the accord, alleging that plaintiff's damages were the result of a subsequent accident and not from the collision originally complained of in which defendant's driver was involved. Defendant interpleaded T. W. Williams as a defendant, alleging that he had made the repairs to plaintiff's truck and, in the event the repairs were not properly made, the defendant Casner should recover over against defendant Williams. By supplemental petition plaintiff replied that the Maryland Casualty Company, which carried defendant Casner's liability insurance, agreed to have the truck repaired in such a manner as to put it in as good condition as it was immediately before the accident and agreed to furnish the guaranty of a reputable repair man to that effect, and that the Maryland Casualty Company had itself guaranteed that when the repair work was completed the truck would be in as good condition as it was immediately preceding the collision; that after the repairs were made plaintiff discovered that they had not been properly made and so notified the Maryland Casualty Company, and that the company thereupon urged the plaintiff to give the truck a further trial, but that by reason of the defective repairs the frame of the truck gave way, and plaintiff lost a load of merchandise then being hauled in the truck and lost the use of the truck for a period of fifteen days, and it was necessary to have other repairs made on the truck at a cost to plaintiff of $299.50, plaintiff praying that he be permitted to make the Maryland Casualty Company a party defendant.

"In his first amended original petition plaintiff, in his first count, sought recovery of damages against defendant Casner as in his first original petition, and in his second count plaintiff made the Maryland Casualty Company a party, pleading the terms of the accord as above set out and seeking, only in the event it should be held that his cause of action had been compromised by virtue of the accord without satisfaction thereof, recovery over against defendant Maryland Casualty Company for $649.50, that amount representing the cost of the additional repairs, the load of merchandise lost by reason of the defective repairs, and the loss of the use of the truck. Defendant Maryland Casualty Company answered, adopting the answer of its co-defendant R. S. Casner and setting up that the repairs had been properly made, and seeking recovery over against Williams, who made the repairs, in the event it should be found that the repairs were not properly made; that the damages resulting to the truck subsequently to the making of the repairs by the Maryland Casualty Company were, the defendant alleged, caused by overloading and improper handling. To this pleading plaintiff replied by second supplemental petition, setting up that the defendant Maryland Casualty Company had never complied with the terms of the accord, that there had been no satisfaction of the accord, and that plaintiff had never accepted the repairs in settlement of the damages."

The jury found the proximate cause of the accident complained of by plaintiff was the negligence of Casner's driver, in that he was driving on the left-hand side of the street and failed to yield the right of way; that the difference in the market value of the plaintiff's truck just before and just after the collision complained of was $500; that the Maryland Casualty Company agreed to settle plaintiff's claim; and that in settlement thereof it, the Maryland Casualty Company, would restore plaintiff's truck to the same condition it was in just before the collision; that said company failed to so restore the truck.

Question No. 9 reads: "What do you find, from a preponderance of the evidence, was the difference in the market value, if any, between the value of the truck in the condition it was and the condition it would have been had it been restored to the condition it was just before the collision complained of?"

This was answered $150.

Further findings were made that Williams never agreed to repair the truck in a proper and workmanlike manner, nor did he guarantee that the same would be properly repaired. Plaintiff moved for judgment in the sum of $500, which motion was overruled and judgment rendered in his favor for $150 against Casner and the Maryland Casualty Company.

The plaintiff appeals, complaining of the refusal to render judgment in his favor for $500.

McBroom & Clayton, of El Paso, for appellant.

Kemp, Nagle & Smith and Wyndham K. White, all of El Paso, for appellees.

HIGGINS, Justice (after stating the case as above).

It is settled law that an accord without complete satisfaction does not bar a suit on the original cause of action. 1 Tex.Jur. 245 and 284; Hudspeth v. Hilburn (Tex.Civ.App.) 283 S.W. 314; Overton v. Conner, 50 Tex. 113; Ferguson-McKinney D. G. Co. v. Garrett (Tex.Com.App.) 252 S.W. 738; Street v. Smith Bros. Grain Co. (Tex.Civ.App.) 255 S.W. 778; Texas Employers' Ins. Ass'n v. Knouff (...