(concurring) :
I concur in the affirmance, the reversal in part, and also in the remand of the case to the District Court. Moreover, I concur fully in the exhaustive opinion of my Brother Wisdom except as to some matters discussed in Part Y and obliquely referred to in other portions. I think orderly administration also makes it wise13 to emphasize affirmatively that wide latitude exists on remand especially in the possibility of entertaining, perhaps granting, and then framing declaratory relief. The remand is not necessarily confined to an inquiry into the amount, if any, paid by the Assured on the excess with a possibility of a judgment in his or Bostrom’s favor for like amount. In doing so, I follow the Court’s format and discuss this in terms of the Assured’s rights, not the nonexistent ones of the damage claimant.
Accepting The Court’s Holding On Prepayment
For these purposes I accept this Court’s literal reading of the Texas Supreme *183Court’s literal statements in Linkenhoger 14 approving the prior literal holding in Culberson.15 I do so, even though for reasons I later discuss, I am confident that the Supreme Court of Texas would make no such literal holding today in response to the problem we face.
As to the Assured’s claim for the excess of policy limit, Culberson stated that the policy provisions did not “give him [the assured] any right to sue for damages because of failure of the company [insurer] to make a settlement of [the damage claimant’s] claim.” The Court then went on: “As to [the assured’s] alleged cause of action in that regard, Culberson [the assured] cannot assert same until he has paid some sum on the judgment in excess of the $5,000 limit in the policy; and then only to the extent of his payment.” 86 S.W.2d 727, 730, In a straight out Culberson situation if — and the if is a big one- — the only relief sought in a Texas Court is a judgment for damages — -that is a sum of money payable now- — the assured must prove the payment of some of the excess in which event judgment may be rendered to the extent of the payment made.
In Linkenhoger the Supreme Court stated Culberson “clearly supports the [assured’s] contention.” But in Linkenhoger as in Culberson, assured’s suit was for money judgment. The issue was a problem of the Texas two-year statute of limitations. The insurer contended that a Stowers cause of action arose at the time of the negligent rejection of a prudent settlement offer. The assured contended that his rights had not been invaded until the damage claimant’s judgment for an excess amount had become final. The statute of limitations problem turned on when the assured could have commenced a suit to recover damages as such. Although Linkenhoger did, as we acknowledge, expressly approve Culberson, it answered this question in terms of the earliest date on which suit could have been filed. That was fixed as the day on which the damage judgment became final. Indeed, no mention was even made of the date on which the excess judgment was paid, obviously a later date. The Court had to say: “The [assured] could not have maintained this present suit until such time as his liability and the extent thereof had been determined by a final judgment in the [damage claimant’s] case. Until then his rights had not been invaded by [the insurer’s] failure to accept the terms of settlement offered and the tort was not complete.” The Court reiterated, “We sustain the [assured’s] point and hold that limitation did not begin to run in any event until the judgment in the [damage claimant’s] case became final16 * * 260 S.W.2d 884, 887.
But this is a far cry from holding that no relief of any kind would be available under Texas law unless the excess was paid in whole or in part. The Court’s own language reflects that it was not viewing this in terms of a demonstrable dollar damage. After first quoting § 899, Restatement, Torts (C. 1939), that a “tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff,” the Court translated this into tangible terms in a Stowers situation. Recasting it affirmatively, the excerpts quoted above declare: An assured’s rights have been invaded by an insurer’s failure to accept the terms of settlement and the tort is complete at the time the assured’s liability and the extent thereof has been determined by a final judgment in the damage suit case.
To put it in classic tort concepts, the Insurer owed the duty of due care in the settlement of the case. It breached the *184duty resulting in a judgment in excess of policy limits. The judgment has become final and is irretrievable. The existence of a judgment which is final constitutes an injury which would not have occurred had the Insurer exercised due care. It is the final judgment and its awesome legal effect which sets in train the dollar damages which will ensue, and it is the final judgment which has invaded the assured's rights. As in other situations, it matters not that it may be months or years before the full extent or nature of the injuries may be demonstrated or translated into dollars.
Assuming Texas would require the payment of at least one dollar of the excess judgment to commence a Stowers suit to recover money damages, there is no indication at all — indeed, everything points in the opposite direction — that Texas would deny declaratory relief to a hapless assured faced with a quarter of a million dollar judgment described by this Court as “a mortgage on the insured’s future.”17 The remedy is available and is given full voice in Texas.18 And it is an important device in the Federal arsenal.19 Both Texas and the Federal system encourage the use of declaratory relief where it is reasonably necessary and will be helpful in resolving a pressing, existing controversy.20
This brings into play another important principle of Federal procedure. As F.R.Civ.P. 54(c) makes clear, except in the event of a default decree, the “ [r] elief to be granted depends not on the prayer, but on what the facts — either found by trier or established as a matter of law— reasonably * * * ” require. Burton v. State Farm Mutual Auto. Ins. Co., 5 Cir., 1964, 335 F.2d 317, 324. Consequently, on the remand proceedings, with or without formal amendment to the prayer, the District Court will have the 54(c) obligation of determining whether declaratory relief ought to be granted even though because of Culberson a money judgment perhaps cannot be rendered. I would not intimate whether declaratory relief ought to be granted or what its form or character might or should be. There is wide latitude in its form and content for as in Burton, supra, and a host of other cases 21 we have rec*185ognized that the Court may, indeed often must, cast it in the form of a conditional order or decree.22
Disagreement With Courts Holding Payment Required
Thus far, in discussing the many avenues open for some character of possible relief on the remand, I have accepted the Court’s ruling that Culberson requires some payment on the excess as a condition to suit for damages by the Assured. Obviously, if no such payment is required, then all I’ve said about the prospect of declaratory relief by an assured (or one in his shoes such as an assignee under a valid assignment), is doubly true. On this, I think Linkenhoger, approving Culberson as support for the theory asserted there by the assured, effectively releases Texas from this straight jacket to permit an Erie-seeking Court to conclude that Texas would now align itself with the rule of reason permitting suit for damages without prior payment. In the light of Linkenhoger, any other conclusion commits Texas to absurd, unrealistic results which are at one and the same time wholly out of keeping with its policy of repose reflected in statutes of limitations and constitutes rank discrimination against these victims of another’s wrong. Moreover, the rule simply does not serve any real purpose.
As pointed out, Linkenhoger involved a question of when the statute of limitations commenced to run. The insurer on this hypothesis admitting its wrong, urged that the assured’s claim came into being when the wrong was done, i. e., the prudent settlement rejected negligently. The assured contended that it commenced when the damage suit judgment became final. The Supreme Court agreed with the assured. We know for certain that in Texas the suit for damages may not be brought prior to the damage suit judgment becoming final. If giving literal effect to Linkenhoger’s literal approval of what Culberson literally said, we add to the Linkenhoger formula the Culberson requirement of payment, it produces this very startling and senseless result. The suit need not, indeed may not, be filed until payment. If there is no payment by the assured on the excess, the thing can rock along for, say, five, ten, fifteen, twenty, or twenty-five years without suit being permitted. But if, at any one of these times, a dollar is paid by or obtained from the assured on execution, the Stowers-CuIberson suit can be commenced at that late date. By that time, of course, the witnesses may be dead and gone, or their whereabouts unknown. The lawyers who handled the case for the insurer, the investigative agents and claims adjusters, all of whose contemporary judgments will be under review in establishing breach of due care or defending against that charge, may be scattered or dead, retired or senile. Files may be either destroyed or misplaced, and if located will be of doubtful sufficiency in resurrecting a recollection of the handling of one particular case out of the hundreds or thousands of a busy professional lifetime. The truth will be hard to find, and the hurt will be nonpartisan in its effect, the assured suffering in one case, the insurer in another.
Nor can this prospect be brushed aside as a visionary hypothetical. The instant case is the best proof of its likelihood. A judgment debtor because he is young and the record proof does not affirmatively establish that he has some property is declared to have no standing to sue since he has not yet paid. The reflex of this is startling. For the Assured, the judgment debtor, has the Insurer’s fate pretty much in his hands. With all of the whispered suggestions which sometimes emerge in the briefs or arguments of the possibility of connivance and collusion between a damage suit plaintiff and the judgment-debtor-assured, this consequence of Culberson-Linkenhoger certainly lets the gate wide open. Time here may work in much favor for the judgment *186creditor since interest runs at a high rate. By friendly cooperation 23 with the assured, his former adversary, the judgment creditor has only to keep the judgment alive under local statutes, and then time either execution on it or his self-help collection efforts for a moment when the disadvantages of proof and rebuttal will be greatest to the Insurer.
Moreover, if one accepts — as I cannot— the Court’s conclusion that this Assured is destined for a life of poverty, things get worse, not better, under this rule. Someday, perhaps many years later, this young man by modest savings out of the probably average income of any other good American citizen, will acquire a few assets not under the Texas exemption umbrella with which to pay some of the excess judgment. When that day arrives, he may then sue the Insurer, either alone or with his assignee. And applying the Court’s reading of Linkenhoger-Culberson, the suit will be timely even though time has made it impossible to defend in fact.24
From Linkenhoger we know that the assured’s rights have been invaded as a consequence of the insurer’s failure prudently to settle when the assured’s liability and extent thereof has been determined by final judgment in the damage suit. In the light of this, we can no longer assume that Texas would undertake to declare as law a thing so absolutely in conflict with sheer economic fact— that the existence of a final judgment for a large sum does not damage the judgment debtor. Perhaps I reflect a parochial tendency, but I am confident that the Supreme Court of Texas would not in this day and era forecast for one of its young citizens a life so bleak and economically unrewarding as this legal theory necessarily implies.25
The record shows that Jernigan made the trip to Mexico with his young friends Bostrom and Sullivan, all of whom were around the age of 20 at the time of this 1958 occurrence. They were working at Tempeo Aircraft Company at Grand Prairie, Texas, an industrial suburb in the Dallas-Fort Worth complex. Jernigan, the Assured, worked as a tooler and former, a class of labor I would suppose to be in the semiskilled, if not skilled, level. Assuming, as is true of a great majority of Texas young people, that he was a high school graduate, the figures are telling and when figures talk, Courts listen. State of Alabama v. United States, 5 Cir., 1962, 304 F.2d 583, 586, affirmed, 1962, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed. 112. Although at the time of judgment in 1962, he was about 24 years of age with a life expectancy of 46.6 years it facilitates our purposes to round this out for one of 21 years with a high school education. Assuming retirement at 65 and the prospect of 44 work years, the *187officially recognized population-income statistics demonstrate that $250,000 is a conservative income expectancy for this economic lifetime.26
As to this Assured at least, these figures prove it to be a mild understatement for the Court to declare that a $272,000 judgment is a mortgage on a future income of $250,000.
More so, with this longevity and these attainable averages, it is economically improbable and morally indefensible to assume that this productive Texan will either have (a) no savings or, worse, (b) will somehow be clever enough to keep them judgment proof through investments which are statutorily exempt from the reach of creditors. Broad and humane as one would expect the Texas exemption statutes to be, there is still plenty left for the relentless creditor and especially one armed with a judgment that can be kept alive forever.27 No property is exempt unless, expressly or by very liberal implication, it is so designated by the statute, 25 Tex.Jur.2d Exemptions § 13. Although exemptions extend liberally to furniture, books, pictures, wearing apparel, farm animals, horses, mules, some vehicles or carriages, tools apparatus and books belonging to a trade or profession, current wages, and a homestead, there are many things in peril. Unprotected are those assets which normally represent a lifetime savings against the cost of education, the hazard of uninsured illness or old age, or accumulated to enjoy in today’s leisure time. These include savings deposits, bank accounts, corporate stocks, non-homestead real estate, sporting goods, boats, and the like. And even for property as safe as a family homestead, the proceeds of a sale are not exempt, 25 Tex.Jur.2d Exemptions §§ 20, 21.
Moreover, this huge judgment, ubiquitous and perpetual, with an almost scriptural28 tenacity from the break of day to the dark of night is with him always. In an economic society geared to the use of credit for both personal and business acquisition, this judgment stands in the way. It is a lien on all property and his opportunity to meet the needs of himself or his family is encumbered or frustrated as prospective vendor-creditors learn that he is already committed beyond the prospective lifetime earning capacity of the average American. Like Sergeant Smoot,29 who de*188pended on his Air Force pay and the credit that modest income would generate, this Assured’s plans for the development of his life, the welfare, health, education of himself and his children and the opportunity through diligence and savings to acquire things that make life a more pleasant experience are all things which are in the hands of this judgment creditor. Unless — even in this enlightened day — we still demand leg irons and chains, this is peonage in fact. It is the interests of the Assured, not the damage claimant-judgment creditor, that are at stake here. One can agree, as this Court does in echoing the Second Circuit, that there is no basis for the notion that an insurer gets an unjustified windfall because the damage claimant does not reap the excess judgment over the policy limits. Harris v. Standard Acc. & Ins. Co., 2 Cir., 1961, 297 F.2d 627, 631-633.30 But the plight of the assured cannot be so easily brushed away. It is ironic that the insurer, because of the peculiar nature of the tort inflicted, wreacks such damage that it may be impossible for the injured assured ever to recover a single cent. Now that Linkenhoger is here, Texas will follow Georgia,31 Florida,32 and many others in affording a right to sue when the harm has become irretrievable — when the damage suit judgment becomes final.33
Finally, the Culberson requirement of payment of some of the excess serves no purpose. Nevertheless, it cuts up litigation into never ending pieces so that if the parties live long enough and enough Judges are around and courthouses are open, the judgment, no matter how big, will someday be paid.
We recognize, as we must, that Culberson does not require payment of all of the excess judgment. It declares only that the assured “cannot assert” the Stowers claim “until he has paid some sum on the judgment in excess of the [policy limits] ; and then only to the extent of his payment.” 86 S.W.2d 727, 731.
An analysis of this requirement reveals that the payment of even a nominal sum sets the whole thing in motion, the effect of which is to obtain a judicial determination which is binding as res judicata on liability, and that victory is the first such claim assures a source out of which the whole claim will finally be paid. A dollar is as good as a hundred, but to keep it out of petty courts, I use the figure of 100 dollars.
*189The assured, the judgment debtor, pays $100 on the judgment. He then files his Stowers suit to obtain a Culberson recovery of that amount. That draws necessarily in issue the question of the negligence of the insurer in failing to settle. On our hypothesis the assured prevails. He obtains a judgment for $100 which becomes final. On execution of that judgment, the assured gets the $100. This is property subject to no exemption. By attachment or garnishment or execution, the damage claimant judgment creditor gets this $100. In this way the assured has paid another $100. He institutes his second Culberson-Stowers suit to recover that $100. Now his task is simple. He need prove only the prior judgment which establishes liability on res judicata and the fact of payment through execution on the Stowers damages momentarily received by him from the insurer. Another judgment for $100 is rendered. It becomes final. There is execution on it. And so on ad infinitum.34
I do not minimize what Culberson said it held. I do assert that Linkenhoger added so much to the Texas Stowers law that Culberson may no longer literally be applied. Having gone as far as they have in Linkenhoger, the Supreme Court of Texas will recognize that the factors discussed by me produce artificial, absurd and very damaging consequences. It will, I am confident, recognize the right of an assured thus victimized to have a judicial determination of his grievance at a time when the facts are reasonably available to all parties. It will grant appropriate relief without condemning the assured to the ignominy of bankruptcy, the stealthy acquisition and concealment of nonexempt savings and assets or the certain knowledge that as he progresses in age and income, his fortune is dedicated to a judgment holder all because an insurer breached a duty to defend him prudently.35 In this way Texas will give full voice to'the Stowers doctrine.36 A niggardliness in this area would be out of step with its liberal policies on tort liabilities generally, including the ordinary case for damages caused by negligent breach of contract. See 40 Tex.Jur.2d Negligence § 9. Some criticize the due care standard in contrast to that of good faith, but all States seem to recognize now that an assured does have some recourse for failure of the insurer to perform his engagement. Like the stevedore, the insurer must perform its engagement in a workmanlike manner or it suffers the consequences, sometimes awesome indeed. See Vickery, Stevedore-Shipowner Indemnity: The Ryan Doctrine, Tul.U. 7th Tidelands Inst. 167-76 (1963); Strachan Shipping Co. v. Melvin, 5 Cir., 1964, 327 F.2d 83, 86 (dissenting).
. See FTC v. J. Weingarten, Inc., 5 Cir., 1964, 336 F.2d 687; Hill v. FPC, 5 Cir., 1964, 335 F.2d 355, 365 and n. 27; Shenandoah Valley Broadcasting, Inc. v. ASCAP, 1963, 375 U.S. 39, 84 S.Ct. 8, 11 L.Ed.2d 8, opinion modified and rehearing granted in part, 1964, 375 U.S. 994, 84 S.Ct. 627, 11 L.Ed.2d 467, 468 (dissenting opinion); Bartone v. United States, 1963, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11; United States v. May-ton, 5 Cir., 1964, 335 F.2d 153; Burton v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1964, 335 F.2d 317; Benson v. United States, 5 Cir., 1964, 332 F.2d 288; Whitney y. Waimvright, 5 Cir., 1964, 332 F.2d 787; Anderson v. United States, 5 Cir., 1963, 318 F.2d 815; Juelich v. United States, 5 Cir., 1963, 316 F.2d 726; Younger Bros., Inc. v. United States, S.D.Texas (3-Judge), 1965, 238 F.Supp. 859, 861-862.
. Linkenhoger v. American Fid. & Cas. Co., 1953, 152 Tex, 534, 260 S.W.2d 884.
. Universal Automobile Ins. Co. v. Culberson, 1935, 126 Tex. 282, 86 S.W. 2d 727; on rehearing, 87 S.W.2d 475.
. As to the instant case, see Part I of the Court’s opinion, the damage claimant’s judgment was rendered February 12, 1962. Absent an appeal, it became final within thirty days. The damage claimant Bostrom filed this vicarious “Stowers” suit on December 26, 1962 (second amended complaint). The assignment from the Assured to Bostrom was apparently made on June 24, 1964, long after the judgment appealed from was rendered, October 16, 1963.
. See text accompanying note 8 of Court’s opinion.
. The Uniform Declaratory Judgments Act was enacted in 1943. Tex.Civ.Stat. Ann. art. 2524, §§ 1-16.
“Section 1. Courts of record * * * shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
* x *
“Section 3. A contract may be construed either before or after there has been a breach thereof.
SjS $ -$ $ $
“Section 8. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.
* * * * *
“Section 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to he liberally construed and administered.” It is given wide and liberal application. Guilliams v. Koonsman, 1955, 154 Tex. 401, 279 S.W.2d 579; Cobb v. Harrington, 1946, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.K.. 837; see United Services Life Ins. Co. v. Delaney, 5 Cir. (en banc), 1964, 328 F.2d 483, 489 (concurring).
. 28 U.S.C.A. § 2201. “In a case of actual controversy within its jurisdiction * * * any court of the United States * * * may declare the rights and other legal relations of any interested party * * * whether or not further relief is or could be sought. * *
. Of course all must recognize that the granting of declaratory relief is a matter of judicial discretion to be exercised in the. public interest carefully weighing all factors including matters of state policy. Eccles v. Peoples Bank, 1948, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784; Seniors v. Arnold, 5 Cir., 1960, 284 F.2d 106; Byers v. Byers, 5 Cir., 1958, 254 F.2d 205; American Fid. & Cas. Co. v. Pennsylvania Threshermen & Farmers Mut. Cas. Co., 5 Cir., 1960, 280 F.2d 453.
. Smoot v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1962, 299 F.2d 525; Travelers Ins. Co. v. Busy Electric Co., 5 Cir., 1961, 294 F.2d 139, 145; Sax v. Sax, 5 Cir., 1961, 294 F.2d 133, 139; Dotschay v. National Mut. Ins. Co., 5 Cir., 1957, 246 F.2d 221.
. The Assured is not, of course, a party. Declaratory relief available to or to be granted to Bostrom, the damage claimant, depends on his establishing a status of a vicarious assured through the purported assignment. The Court intimates no opinion on the validity, timeliness, or legal significance of this or any other assignment.
. The assured does owe the duty of good faith cooperation. But once the insurer breaches its obligations to the point where, on this hypothesis, it has negligently failed prudently to settle with a resulting judgment far in excess of policy limits, there seems to be no reason why, at that stage, an assured may not take any honest action which appears to hold out prospect for relieving himself of the specter of all or a substantial part of a large and growing judgment even though this incidentally benefits the former adversary as well.
. This inescapable consequent furnishes powerful supporting reasons for the existence of a right to obtain suitable declaratory relief prior to payment of the excess, but after the damage suit judgment has become final. Unless this relief is open, it may be that vital evidence will be lost altogether with detriment to the assured, the insurer, or both. With no right to sue for damages, the only other way to preserve evidence would be by the awkward and unsure device of a bill of discovery to perpetuate testimony. F.R.Civ.P. 27(a) (1), (c) ; Tex.R.Civ.P. 737.
. This concept is absorbed by the Court. See note 11 distinguishing Smoot v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1962, 299 F.2d 525, on the ground that Smoot “had substantial property * * * from which at least part of the excess judgment could have been satisfied” while “here the insured cannot satisfy even a part of the excess judgment”; and “since the insured here has no assets * * Culberson prevents recovery “if the insured has no assets and is completely unable to satisfy the judgment.”
. In 1961, the median income for high school graduates, aged 25 and over, was $5,552. 1962 figures show the median income of employed male civilians to be $5,240, and if he works in manufacturing, $5,793, with median family income at $6,237.
But a breakdown, based on 1961 figures, reveals that 50.9% of high school graduates earned over $5,000.
$ 3,000 to $3,999 11.9%
4,000 to 4,999 12.6
Over 3,000 24.5%
$ 5,000 to Í ¡>5,999 15.5%
6,000 to 6,999 12.5
7,000 to 9,999 16.2
10,000 and over 6.7
Over 5,000 50.9
Total over $3,000 75.4%
Viewed from another angle, and perhaps more meaningfully, 1962 figures show that of the families in this country with income between $10,000 and $15,000, fully 61% had no more than a high school education, and of the families with over $15,000 income, 41% had had no more than a high school education. Source, Statistical Abstract, 1963, p. 122, and 1964, pp. 340-43.
One of the nation’s distinguished economic analysts, Sylvia Porter in “Your Money’s Worth,” Houston Post, December 10, 1963, evaluating the benefit of education stated average gross incomes for the years 18 through 64 was as follows:
Average Total Lifetime Income
Years Completed
Grade School 8 $184,000
High School 1 to 3 212,000
4 — grad. 247,000
College 1 to 3 293,000
4 — grad. 417,000
. See Tex.Civ.Stat.Ann. art. 5447-5449; 35 Tex.Jur.2d Judgments §§ 590, 595.
. Psalm 139; see Continental Oil Co. v. FPC, 5 Cir., 1959, 266 F.2d 208, 222 (dissenting).
. Smoot v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1962, 299 F.2d 525, and 1964, 337 F.2d 223.
. Although the point involved in Harris was not yet reached, this Court in Palmer v. Travelers Ins. Co., 5 Cir., 1963, 319 F.2d 296, held that the Referee’s refusal to permit a bankruptcy Trustee to sue the bankrupt’s insurer for a Stowers claim was erroneous. There the statute of limitations was again the key according to the insurer’s viewpoint. It argued that since the damage suit judgment was not final until long after the date of bankruptcy, the assured (bankrupt) had no right against the insurer as of the date of bankruptcy and the trustee therefore succeeded to none. We rejected that artificial restraint on a trustee’s powers. Concurring generally, I added a further concurrence that the insurer’s theory confused the right to recover money damages on a Stowers claim with other legal remedies open to an assured, long before the judgment became final, to compel an insurer to comply with its contractual duty. Of these I said: “These were valuable existing rights which belong to the Assured and to which the Trustee succeeded. Any other result would be to allow an insurer to default, drive its assured to the wall of bankruptcy, and then blithely advise the estate, the trustee, the assured and all of the creditors that while its duty was breached, there is nothing to be done about it.” 319 F.2d 296, 300.
The 7th Circuit recently allowed recovery of excess damages by the trustee without prior payment of the damage judgment which judgment drove him to the wall of bankruptcy. Anderson v. St. Paul Mercury Indem. Co., 7 Cir., 1965, 340 F.2d 406.
. Smoot v. State Farm Mut. Auto. Ins. Co., supra, note 29.
. Burton v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1964, 335 F.2d 317, 324.
. Another peril to the contrary rule is the possibility that the insurer will go out of business, become insolvent, etc. during the long wait between judgment finality and the first payment.
. The ad infinitum may be really so. For under Culberson, the suit may be filed “only to the extent of [the assured’s] payment.” Necessarily the statute of limitations runs only as to the payment made. This recognizes, therefore, that the claim is divisible, is not encumbered by doctrines against splitting of a cause of action, and some cause of action remains until the judgment final discharged by final payment.
. Negligence of the Insurer is assumed in the hypothesis of the Court’s opinion and this concurrence. Although the Assured is not a party, the case was tried, submitted and decided for all practical purposes as though he were or had been a party. Of course, I intimate no opinion as to whether the Insurer is bound by this.
. I am at a loss to understand where the Court finds any basis for its feelings that Texas is afraid of the Stowers doctrine, wishes it had never been started, or ways must be found to constrict it. And since this is not an extension of Stowers, I disagree with such comments as “If the Stowers doctrine is to be extended, the Texas courts must do it”, 347 F.2d 179.