(dissenting).
In my opinion the trial court erred in holding that the “cooperation” clause in an insurance policy created such a substantial conflict of interest between' Hunt, the insured, and Allstate, his insurer, as to justify denying Allstate the right to defend Rose, an uninsured motorist, whose defenses were coincident with those of Allstate. The trial court also abused its discretion in denying Allstate’s motion to withdraw its consent to be bound by a judgment in the action by the insured against the uninsured motorist. Allstate gave its consent upon the basis of circumstances which the insured thereafter substantially altered. Allstate, a named defendant, even if denied the right to defend Rose, also a named defendant, should have been permitted to defend itself. In my opinion Allstate was denied due process.
To the extent possible, Allstate eliminated every conflict which might arise between the parties. Rose, the uninsured motorist, did not assert a cross-action against Hunt, the insured. In such a situation Allstate would be duty bound to defend its insured. Allstate gave up its right of subrogation against Rose as a means of eliminating a conflict of interest between it and Rose. The undisputed evidence is that Rose agreed to this arrangement. This was Allstate’s agreement: “in return for an agreement by Allstate Insurance Company to waive its subrogation rights against Eurice Rose, Eurice Rose and his attorney, Travis Hines, associated Tom Lorance to assist them and to take the lead in the defense of the case on the questions of liability and damages, on the theory that the interests of Eurice Rose and his attorney and Allstate Insurance Company and *156its attorney were exactly coincidental * * (Emphasis added). See Sec. 7.-21,'Widiss, Uninsured Motorist Coverage (1969).
Only one possible conflict remained, and it will be present in every uninsured motorist case. Allstate’s policy requires Hunt to cooperate in developing the file on the facts of the collision. The record does not disclose the contents of the file, but we do know that Allstate possessed such a file. An insurer’s use of a file prepared under a cooperation clause is • no more significant in this case than it is in any suit brought by an insured against its insurer in any adversary proceeding. Allstate was a true adversary to Hunt at the time of trial. The best evidence of the fact is that Hunt filed this suit and named Allstate as an adverse party defendant. Insured persons daily try cases against their insurers with files developed under a “cooperation” or similar clause. This is true in automobile, fire, life, theft, accident, wind, and workmen’s compensation insurance cases as well as in direct actions brought by an insured against its own insurer.
There are good reasons that we should not hold that the mere existence of a file in the possession of the insurer establishes substantial conflict between the insurer and the insured. For one thing, assuming that a conflict is created, the majority does not resolve that conflict but only postpones it. As a result of the majority’s decision, no insurer will in the future give its consent to be bound by the results of a judgment between its insured and an uninsured motorist. A suit against the insurer alone will always be necessary. In that suit the insured will be required to try the liability of the uninsured motorist and the damage issues, just as he would in a suit against the uninsured motorist. In defending on these issues the insurer will be entitled to use the file it developed on the case. The conflict alleged to be present in the case before us will again arise. The only way this “conflict” can ever be eliminated would be to deny the insurer the right to defend on the issues of damages and the liability of the uninsured motorist.
The decision of the majority leaves no room for the exercise of discretion in uninsured motorist cases. If the possession of a file by the insurer is the basis for finding a conflict, it will be a rare case in which any insurer escapes the disqualification. It is the business of insurers to develop files on accidents covered by their policies. The discretion which the majority upholds is really a rule of law which can operate only in one direction and always against the insurer.
The worst feature of the majority holding, however, is that it defeats an economy of judicial effort. This has been the basis for decisions in most other states which reach an opposite result. Other jurisdictions have freely permitted insurers to intervene on the side of the uninsured motorist so that the same issues need not be twice tried. Many have required the insurer to intervene, so strong is the effort to avoid duplication of litigation. The significance of these many precedents in other states is that they permit or require the insurer to make common cause with the uninsured motorist because the same issues must be decided either in one trial or separate trials, if the insurer is to be held. Widiss, in Section 7.15, Uninsured Motorist Coverage (1969) writes:
In the event the insured elects to bring an action against the uninsured motorist, many jurisdictions will allow the insurance company which has issued uninsured motorist coverage to intervene for the purpose of presenting defenses on behalf of the uninsured motorist or joining in the defense. Depending on the jurisdiction, such intervention may be a matter of right or may depend on permission of the court.
If the insurance company intervenes as a defendant in the insured’s action against the uninsured motorist, by necessity the issues of (1) whether the insured is legally entitled to recover from *157the uninsured motorist and (2) the amount of such recovery will definitely be resolved as between the insured and the company (as well as between the insured and the uninsured motorist). Therefore, in all probability nothing is left for a subsequent arbitration or litigation.
In State Farm Mutual Automobile Ins. Co. v. Glover, 113 Ga.App. 815, 149 S.E.2d 852 (1966), the court held, that the insurer’s right to intervene was based upon the constitutional due process issue of the insurer’s right to defend against its liability under its policy. The court wrote:
* * * Nor do we consider that there is a conflict of interest as to the insurer and insured any more than there would logically be if the insurer denied coverage under the contract. In such a case as this the interests of both parties, plaintiff and insurer, are represented by counsel and guarded by the court. Any other construction of the uninsured motorist law would render it unconstitutional as it applies to the facts of this case. See State of Missouri ex rel. State Farm Mutual Automobile Ins. Co. v. Craig, 364 S.W.2d 343 (Mo.App., 95 A.L.R.2d 1321, Anno. p. 1330).
The gravity of the supposed conflict of interest arising out of the cooperation clause has not been appreciated in a host of cases which have permitted or required the insurer to make common cause with the uninsured motorist. Among the cases are: State Farm Mutual Automobile Ins. Co. v. Glover, supra; State Farm Mutual Automobile Ins. Co. v. Jiles, 115 Ga.App. 193, 154 S.E.2d 286 (1967); Lamb v. Horwick, 48 Ill.App.2d 251, 198 N.E.2d 194 (1964); Wert v. Burke, 47 Ill.App.2d 453, 197 N.E.2d 717 (1964); Dominici v. State Farm Mutual Automobile Ins. Co., 143 Mont. 406, 390 P.2d 806 (1964); Missouri ex rel. State Farm Mutual Automobile Ins. Co. v. Craig, 364 S.W.2d 343, 95 A.L.R.2d 1321 (Mo.App.1963); Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969); Matthews v. Allstate Ins. Co., 194 F.Supp. 459 (E.D.Va.1961). Contra: MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252 (1968); Hernandez v. State Farm Mutual Automobile Ins. Co., 192 So.2d 679 (La.App.1966); Holt v. Bell, 392 P.2d 361 (Okl.1964).
I would hold that there is no conflict in this case which justifies the holding that Allstate was disqualified to appear on behalf of Rose, the uninsured motorist.
There Was Abuse of Discretion
The trial court abused its discretion in refusing Allstate’s motion to withdraw its consent to be bound by the Hunt-Rose judgment after Hunt substantially changed the posture of the lawsuit. This is the sequence of events. Hunt instituted its suit, naming Rose only, on April 8, 1966. On October 5, 1967, Allstate agreed with Hunt that it would be bound by the judgment as to liability and damages in the suit by Hunt against Rose. Allstate, under the undisputed facts, was willing to make that agreement after it obtained from Rose an agreement that Allstate would take the lead in the Hunt-Rose suit. To obtain Rose’s agreement Allstate surrendered its subrogation rights. In an effort to consolidate these trials Allstate also waived its coverage defenses and stipulated its contractual liability.1 For reasons already discussed, this should have permitted Rose and Allstate to defend jointly the issues *158which Hunt otherwise had to prove against each of them in two suits.
It was at this point that Hunt, not Allstate, changed the entire situation. Hunt decided to join Allstate as a first-named defendant in an amended petition which it filed on October 10, 1967. This converted the action into a direct action against the insurer with the uninsured motorist joined. I find nothing wrong with this procedure; Allstate now was an open adversary, not only in fact but by Hunt’s own pleadings. Hunt, no doubt, thought that it would aid his case for a jury to think that Allstate was the insurer for Rose.
This new situation was not of Allstate’s making. If Allstate had known at the time it gave its consent to be bound that it would later be joined as a defendant, there would have been no need for its consent, and it could have defended itself on both the liability and damage issues. If Allstate had known that Hunt would name it as a defendant, there would have been no need for it to surrender its subrogation rights against Rose. If Allstate had known that it would not be permitted to participate in the trial, it would surely not have consented to be bound by the results of the trial. Allstate thus reasons, and I agree, that Hunt’s designedly changing the posture of the case and making a new party entitled it to a withdrawal of the consent to be bound.
The correct alignment of parties in uninsured motorist cases is a new problem in Texas. Allstate followed the teaching of other jurisdictions and surrendered every right which might otherwise create conflicts of interest. It then had good reason to think that it could defend Rose on their common defenses without disclosing the fact of insurance, because that arrangement was consistent with the settled Texas practice. Accord, Widiss, Uninsured Motorist Coverage, Sec. 7.21 (1969). The majority opinion accepts this principle, saying in its opinion, “ * * * there is something to be said on behalf of the uninsured motorist who might not want to have an insurance company as a co-defendant.” This court has said, “This court takes judicial knowledge of the fact that a jury is more apt to render a judgment against a defendant, and for a larger amount, if it knows that the defendant is protected by insurance.” Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Kuntz v. Spence, 67 S.W.2d 254 (Tex.Com.App.1934, holdings approved); 2 McCormick and Ray, Texas Law of Evidence, Sec. 1539 (2d ed. 1956). This was the reason for the arrangement between Allstate and Rose that Allstate’s identity would not be disclosed to the jury. It was this settled practice which Allstate and Rose were respecting and by which all aspects of this three-party problem would have been determined, but for Hunt’s making new parties in its desire to name its own insurer as co-defendant in such a way as to convey the idea to the jury that Allstate was the uninsured motorist’s insurer.
When it became apparent that Hunt had disclosed the fact of insurance, and in an effort to respect this accepted Texas practice, Allstate had to take some steps. It moved that its identity be withheld from the jury. Alternatively it moved for a separate trial. The trial court granted the motion for separate trial. This motion for separate trial and the trial court’s favorable order is now held to be sound reason for refusing to permit Allstate to withdraw its consent to be bound. The reasoning is that Allstate received the very thing it asked for, a separate trial.
Allstate did not receive a separate trial. It received no trial at all. On December 16, Rose and Allstate appeared for trial, and after a hearing before the court, Allstate was excluded from the trial and ordered to conceal its file from Rose. Rose’s attorney asked for a delay and said that it had announced ready on December 13, “[ip] redicat ed, your Honor, on the fact that Mr. Lorance (Allstate’s attorney) would be the lead counsel in the case.” The trial court postponed the trial one day, until De*159cember 17, and on December 18 a jury verdict was returned against Rose in the sum of $19,106.20.
We come to the “separate trial.” On January 9, 1969, Allstate’s trial came on for hearing. The court took charge of developing the record. It instructed counsel for Hunt to introduce in evidence the Allstate policy which Hunt’s counsel did not have and had to send for. The court then told Hunt’s counsel to introduce Allstate’s motion to sever, Allstate’s motion to withhold its identity, and Allstate’s consent to be bound. Following the introduction of those documents and a record of the proceedings which consumed the first three pages of the statment of facts, the court ruled, “The Court finds that there is no issue of fact to be determined in the suit * * Allstate had already admitted coverage.2 It received a separate trial only on the issue it had already admitted; it was denied a trial on the issues which it disputed. Allstate received a phantom trial, yet the court of civil appeals holds that Allstate got what it asked for.
Allstate’s Right To Defend Itself
There is yet a more compelling reason that the judgment of the trial court should be reversed. The agreement which Allstate signed and delivered to Hunt was not a confession of liability. It was a consent that one judgment would settle the issues between Hunt, Rose, and Allstate. This is the letter agreement:
“Please take this as the necessary written consent of Allstate Insurance Company under the policy that the results of the litigation of the tort question, if any, and the amount of damages sustained by Mr. Hunt, if any, (subject to the applicable limits within the policy) shall be binding upon Allstate Insurance Company so that these matters will be taken as established with relation to any claim of Mr. Hunt under his uninsured motorist coverage with Allstate Insurance Company.”
The situation on December 16, when this case was set for trial, was that Hunt had named Allstate as a co-defendant. Any question of conflict left the case when Hunt filed its amended petition and joined Allstate, who then had the legal right to defend itself. It is no answer to say that Allstate had agreed to be bound by the judgment in that case. It was willing to be bound by the one judgment. The consent to be bound became immaterial after the joinder of Allstate, because thereafter there could be only one judgment whether Allstate consented or not. The only escape from this conclusion is to make of the consent to be bound by one judgment a confession of liability. I can not find that meaning in the words stated above.
The opinion of the majority will generate unnecessary litigation in cases such as this one, in which any possible conflicts arising out of a cross-action or the right to assert a subrogation claim have been eliminated. In State Farm Mutual Automobile Insurance Company v. Matlock, 462 S.W.2d 277 (Tex.1970), we took a short step toward simplifying the practice involving uninsured motorist clauses. We alluded to Article 5.06-1, Insurance Code, and said that the code did not require the insured first to obtain a judgment against the uninsured motorist prior to commencing a direct action against the insurer. We disposed of that case, however, on a different point. Consistent with the spirit of Mat-lock, I would hold that an insured may also bring a direct action against the insurer and join the uninsured motorist so one suit could resolve the whole problem. I see no difference in the two situations. I would also hold that an insured may bring a direct action against his insurer, and that the insurer would be permitted to intervene on the side of the uninsured motorist. The opinion of the majority runs counter to Matlock and forces a practice of unneces*160sary prior suits before action may be commenced against the insurer.
I respectfully dissent. I would reverse the judgments below and remand this cause to the trial court so Allstate can represent itself in the action in which it is a named adversary defendant.
WALKER, STEAKLEY and REAV-LEY, TJ., join in this dissent.
. Now, simply to avoid splintering and multiple trials, and to litigate finally and forever all issues between all parties, Allstate, with full disclosure to the plaintiff, to Rose, to all attorneys and to the Court, has been willing to waive cmy coverage defense, to stipulate its contractual liability, to waive the stibro-gation, to stipulate those things which are plaintiff’s burden of proof, including that Rose was uninsured, and all other things, and let its liability be established by a jury under legal evidence with an honest defense on the questions of liability and damages. (Allstate’s statement in open Court). (Emphasis added.)
. See footnote 1.