(dissenting).
I respectfully dissent, because it is my opinion that the Court of Civil Appeals was correct in holding that this case is ruled by Traders & General Ins. Co. v. Richardson, Tex.Civ.App., 387 S.W.2d 478 (wr. ref.). See also Garrett v. Mathews, *559Tex.Civ.App., 343 S.W.2d 289 (no writ); Cormier v. Highway Trucking Co., Tex. Civ.App., 312 S.W.2d 406 (no writ). In Richardson the insurer paid its insured for collision damage to the latter’s truck. The insured then brought suit against a third party for damages sustained in the collision. The insurer had notice of the suit but did not intervene and was not impleaded. By virtue of a compromise agreement, the suit was settled by payment of $4,750.00 to the insured and the entry of a judgment that the insured take nothing. In holding that this judgment was a bar to the suit subsequently instituted by the insurer, the court said:
“The payment of money by Traders & General Insurance Company [the insurer] to Jack and George Haflin [the insured] and the execution of the subrogation papers by Jack and George Haflin to Traders & General Insurance Company did not effectively split the cause of action. The splitting of the cause of action for damages under the circumstances in this case is not permitted under the law of this state. Garrett v. Mathews (Tex.Civ.App.1961) 343 S.W.2d 289; Cormier v. Highway Trucking Co. (Tex.Civ.App.1958) 312 S.W.2d 406. Traders & General Insurance Company could have protected itself by filing an intervention while the first suit was pending. The judgment in the first suit is a bar to any recovery in this present suit.”
Our problem here is not whether Rule 97 imposes upon the subrogee-insurer a duty to intervene in the suit instituted against the insured. Obviously it does not, and the cases cited above do not hold that the insurer is under such a duty where suit is brought by the insured. The question in those cases was whether, in view of the rule against the splitting of a cause of action, the judgment in the suit between the insured and a third party operated to bar a later suit instituted against the latter by the insurer. That is the ultimate question here.
According to the allegations of the first amended petition, Motors Insurance Company is subrogated to and received an assignment of only part of Price’s claim for damage to the automobile. Price continued to own part of the claim, and in so far as he was concerned this was a compulsory counterclaim in the suit brought against him by Couch. Rule 97, T.R.C.P. The judgment in that case is clearly res judicata of any claim for damage to the automobile that might be asserted by Price against Couch, just as the judgment in Richardson was res judicata of any further claims by the Haflins against Martha Richardson. Under the rule against the splitting of a cause of action as applied in the latter case, the judgment in the suit brought by Couch against Price is a bar to any recovery in the present suit. In my opinion there is no material difference between that case and this. Unless the decisions cited above are reexamined and disapproved, therefore, I would affirm the judgment of the Court of Civil Appeals.
Greenhill, J., joins in this dissent.