(concurring).
The result reached in this case is correct. The Court, however, declines to overrule Pan American Insurance Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644 (1961). The Court seems to distinguish the present case from Hi-Plains solely upon the basis of parties and the amount of recovery in the suit against the tortfeasor. In Hi-Plains, the settlement between the employee and tortfeasor Hi-Plains was for the sum of $1,750.00. Pan American, the compensation carrier, continued the suit after settlement against the tortfeasor, Hi-Plains. This resulted in a judgment for $1,500.00, a sum less than the amount of the settlement. The carrier had paid compensation in the sum of $3,908.05. In the present case, the settlement between the employee and the tort-feasor was for the sum of $3,500.00. Great American, the compensation carrier, recovered a judgment from Capitol Aggregates, the tortfeasor, in the sum of $6,547.25. Judgment is being upheld for Great American merely because of difference in parties and because the judgment obtained by Great American against the tortfeasor is more than the amount of the settlement. The aggregate of the two sums is less than the sum of $12,146.65, which was the amount of compensation paid by Great American to the employee, Franks.
In both cases, the subrogation rights of the carrier are definitely fixed by Section 6a of Article 8307, Vernon’s Annotated Civil Statutes of Texas. This statute does not provide for separate causes of action. The carrier’s rights should not be made to turn upon the result of a jury trial after settlement. Whatever the recovery in damages plus the amount of settlement might be, the carrier paying compensation should be entitled to the total sum so long as such sum does not exceed the amount of compensation paid. There is no real distinction between Hi-Plains and the present case. The Court should so hold and expressly overrule Hi-Plains. The statute does not limit the carrier to the first money paid to or recovered by an employee. The pertinent part of Section 6a, supra, reads:
“If compensation be claimed under this law by the injured employé or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employé in so far as may be necessary and may enforce in the name of the injured employé or of his legal beneficiaries or in its own name and for the joint use and benefit of said employé or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employé or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employé or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employé or his beneficiaries and the approval of the board, upon a hearing thereof.”
The applicable portions of Section 6a were adopted primarily to protect the compensation carrier. In every instance where the carrier pays compensation, it is entitled to full recoupment out of all moneys paid to the employee by way of settlement plus all sums recovered by way of damages from the tortfeasor. This should have been the holding in Hi-Plains. In Hi-Plains, four Justices dissented. Therefore, I have no hesitancy in suggesting that the principles of law announced in that case be overruled. See Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936).