Dissenting Opinion
TUNKS, Chief Justice.I respectfully dissent.
The facts of this case are accurately stated in the majority opinion. Those facts show that the Maryland Casualty Company, insurer for the appellees, was confronted with two claims asserted by two different claimants growing out of one accident. The carrier declined to pay one claimant until the other claim was settled. Its conduct in that respect was not at all unreasonable. It is obvious that an important factor in the settlement of claims is the avoidance of possible expense to be incurred in defending suits. The carrier could not fully avail itself of the benefits in that respect by settling one claim and defending the other. Not only did the conduct of the carrier constitute a reasonable exercise of business judgment but it was conduct clearly within its legal rights.
The majority seems to place emphasis on the fact that it was to the financial interest of Herrin Transportation Company to get the plaintiff to release his claim. I would emphasize that fact as sustaining the validity and propriety of Herrin’s conduct, rather than tainting it. It is uncontrovert-ed that Herrin had the lawful right to terminate Mitchell’s employment without any cause. It should follow, a fortiori, that they had a right to terminate his employment unless he would take such action as would permit them to recover on their claim. In my opinion their conduct would be more subj ect to attack if they, having no financial interest in the matter, had threatened to fire Mitchell because of personal spite or ill will or simply because they were permitting Maryland Casualty Company to avail itself of a lawful right to discharge which they, as employers at will, had.
As the two actors in this situation, the carrier and the employer, each acting individually, were acting within their legal rights, so were they, acting in concert, within the bounds of lawfulness. The majority opinion cites authorities for the proposition that an employer’s threat to discharge an employee at will is not duress. Neither is any other threat to do any other lawful act duress. It may be assumed that the record supports a finding of fact to the effect that Maryland Casualty Company refused to pay Herrin until Mitchell had settled his claim for the purpose of inducing Herrin to exercise its influence in getting Mitchell to settle for the amount offered. At least Maryland Casualty Company got the benefit of Herrin’s exercise of its influence. Maryland Casualty Company, however, did not induce Herrin to do or threaten to do something unlawful to influence Mitchell to settle.
Nor is the appellant’s contention that his settlement was involuntary because it was made under economic compulsion sound. In McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, it was held that a workmen’s acceptance or retaining employment in the face of known and appreciated dangers was voluntary though done under the economic necessity of earning a livlihood. Thus, Mitchell’s settlement of his claim to avoid losing his job was, nevertheless, voluntary.
I would affirm the judgment of the trial court.