(dissenting).
I respectfully dissent. This action was brought by Triton for “legal debt” arising out of an automobile collision between Roger Dale Garner and Harold Rudolph Williams. Actually, the suit is one for damages based upon alleged negligent acts of Roger Dale Garner. Garner answered by pleading a release from Williams, who was Triton’s insured. Triton went to trial upon its original petition, and therefore, had no pleadings of fraud, mutual mistake, or any request for relief in the nature of setting aside such release.
There was a single cause of action for damages which Williams had against Garner following this collision. The subrogation agreement with Triton did not split this cause of action, as Texas follows the majority rule. 127 A.L.R. at page 1081, reads as follows:
“ * * * in a majority of states, a single wrongful or negligent act or omis*266sion causing an injury to both the person and the property of the same individual constitutes but one cause of action with separate items of damage, and that hence, the cause of action cannot be split, and a recovery of a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage, finds support in the following later decisions: [omitting citations].”
If a suit had been brought by Williams against Garner upon his claim for personal injuries, Triton would have been obligated to intervene in the same suit, there being only one cause of action. Traders & General Ins. Co. v. Richardson, 387 S.W.2d 478 (Tex.Civ.App.—Beaumont, 1965, error ref.). There is no reason for a different rule to apply where the cause of action is disposed of by judgment to the instance in which the cause of action is disposed of by release. In fact, in Garrett v. Mathews, 343 S.W.2d 289 (Tex.Civ.App.—Amarillo, 1961, no writ), an agreed judgment was entered in the first suit, which is nothing more than a contract, and the Court of Civil Appeals held it barred recovery in a second suit on a subrogation claim because we follow the majority rule in Texas and the cause of action cannot be split. The Loy v. Kuykendall case, supra, cited in the majority opinion, does not approve the splitting of a cause of action, but merely states the parties may settle a part of a cause of action and litigate the remainder. A different question entirely was involved there and has no application to the present case.
Before Triton brought this present suit, Garner received a general release from Williams. There were neither pleadings nor evidence showing fraud or mutual mistake, or any other ground for avoiding the consequences of such release, which would entitle Triton to judgment. See Cormier v. Highway Trucking Co., 312 S.W.2d 406 (Tex.Civ.App.—San Antonio, 1958, no writ).
The majority opinion reversing this case, places it solely upon the ground that Garner’s mother knew of Triton’s claim at the time she arranged for the release from Williams, and that she was Garner’s agent as a matter of law, and her knowledge was imputed to him. I know of no theory in law that makes the mother of a minor his agent as a matter of law, especially in view of the uncontroverted evidence that Garner did not know of his mother’s action, and could not legally ratify what she had done during his minority. See 30 Tex.Jur.2d, § 26, p. 684. I would affirm the judgment.
Rehearing denied.
STEPHENSON, J., dissents.