Filipp v. Ochoa

Court of Appeals of Texas

Filipp v. Ochoa

340 S.W.2d 847, 1960 Tex. App. LEXIS 1788

CourtCourt of Appeals of Texas

DecidedNovember 23, 1960

Docket3802

StatusPublished

Cited by5 cases

This text of 340 S.W.2d 847 (Filipp v. Ochoa) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Filipp v. Ochoa, 340 S.W.2d 847, 1960 Tex. App. LEXIS 1788 (Tex. Ct. App. 1960).

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Opinion

WILSON, Justice.

Appeal from judgment of dismissal. Appellant sought recovery for property damage to his automobile. He alleged his insurer, St. Paul Fire & Marine Insurance Company, had paid him the amount of his damages except $50 deductible under a policy of collision insurance; that the insurer thereby became subrogated to this extent, and under the terms of the policy was entitled to assert its cause of action in his name; that the damages were proximately caused by defendant’s negligence.

Appellee filed an unverified plea alleging that on a date nearly one month after the suit was filed, plaintiff executed a release discharging defendant from all liability for property damage. Appellant then pleaded that appellee had full notice of the subro-gation interest of the insurer before he executed the release. Appellee’s allegations of the terms of the release were embodied in an unverified pleading termed a “motion to dismiss.” The court granted the motion and dismissed the action by virtue of the pleaded release.

*848 The court was not authorized to summarily dispose of the action on a plea in bar.

This was not a summary judgment proceeding under Rule 166-A, Texas Rules of Procedure. If it could be considered such, plaintiff’s pleadings would have precluded summary judgment. A release by appellant given to appellee with notice of the subrogation rights does not affect or prejudice the rights of the insurer. Wichita City Lines v. Puckett, 156 Tex. 456, 295 S.W.2d 894, 900; Dale Truck Line, Inc. v. R. & M. Well Serv. & Drill. Co., Tex.Civ.App., 325 S.W.2d 848, 851, writ ref. n. r. e.; Ft. Worth & Denver Ry. Co. v. Ferguson, Tex.Civ.App., 261 S.W.2d 874, 879, writ ref.; 29-A Am.Jur., Sec. 1733, p. 810.

Reversed and remanded.

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WILSON, Justice.

Appeal from judgment of dismissal. Appellant sought recovery for property damage to his automobile. He alleged his insurer, St. Paul Fire & Marine Insurance Company, had paid him the amount of his damages except $50 deductible under a policy of collision insurance; that the insurer thereby became subrogated to this extent, and under the terms of the policy was entitled to assert its cause of action in his name; that the damages were proximately caused by defendant’s negligence.

Appellee filed an unverified plea alleging that on a date nearly one month after the suit was filed, plaintiff executed a release discharging defendant from all liability for property damage. Appellant then pleaded that appellee had full notice of the subro-gation interest of the insurer before he executed the release. Appellee’s allegations of the terms of the release were embodied in an unverified pleading termed a “motion to dismiss.” The court granted the motion and dismissed the action by virtue of the pleaded release.

*848 The court was not authorized to summarily dispose of the action on a plea in bar.

This was not a summary judgment proceeding under Rule 166-A, Texas Rules of Procedure. If it could be considered such, plaintiff’s pleadings would have precluded summary judgment. A release by appellant given to appellee with notice of the subrogation rights does not affect or prejudice the rights of the insurer. Wichita City Lines v. Puckett, 156 Tex. 456, 295 S.W.2d 894, 900; Dale Truck Line, Inc. v. R. & M. Well Serv. & Drill. Co., Tex.Civ.App., 325 S.W.2d 848, 851, writ ref. n. r. e.; Ft. Worth & Denver Ry. Co. v. Ferguson, Tex.Civ.App., 261 S.W.2d 874, 879, writ ref.; 29-A Am.Jur., Sec. 1733, p. 810.

Reversed and remanded.

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340 S.W.2d 847, 1960 Tex. App. LEXIS 1788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/filipp-v-ochoa-texapp-1960.

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