Fishel's Fine Furniture v. Rice Food Mkt., 474 S.W.2d 539 (Tex. App. 1971). · Go Syfert
Fishel's Fine Furniture v. Rice Food Mkt., 474 S.W.2d 539 (Tex. App. 1971). Cases Citing This Book View Copy Cite
24 citation events (3 in the last 25 years) across 8 distinct courts.
Strongest positive: Mendez v. Allstate Property & Casualty Insurance Co. (texapp, 2007-08-20)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) Mendez v. Allstate Property & Casualty Insurance Co.
Tex. App. · 2007 · confidence medium
Fishel’s Fine Furn. v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ dism’d).
cited Cited as authority (rule) Mendez v. ALLSTATE PROPERTY & CAS. INS. CO.
Tex. App. · 2007 · confidence medium
Fishel's Fine Furn. v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ dism'd).
discussed Cited as authority (rule) Mt. Hawley Insurance v. Lexington Insurance
5th Cir. · 2004 · confidence medium
Powell v. Brantly Helicopter Corp., 396 F.Supp. 646, 650 (E.D.Tex. 1975); Guillot v. Hix, 838 S.W.2d 230, 232 (Tex.1992); Fishel’s Fine Furniture v. Rice Food Mkt., 474 S.W.2d 539, 541 (Tex. Civ.App.-Houston [14th Dist.] 1971, writ dism’d).
discussed Cited as authority (rule) A.S.W. Allstate Painting & Construction Co. v. Lexington Insurance (2×) also: Cited "see"
W.D. Tex. · 2000 · confidence medium
“If the subrogor has no rights, then the subrogee can have none.” Fishel’s Fine Furniture v. Rice Food Mkt., 474 S.W.2d 539, 541 (Tex. Civ.App. — -Houston [14th Dist.] 1971, writ dism’d) (citations omitted).
discussed Cited as authority (rule) National Union Fire Insurance Co. of Pittsburgh v. John Zink Co.
Tex. App. · 1998 · confidence medium
Co. v. First Tape, Inc., 817 S.W.2d 142, 145 (Tex.App.—Houston [1st Dist.] 1991, writ denied); Fishel’s Fine Furniture v. Rice Food Mkt., 474 S.W.2d 539, 541 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ dism’d).
cited Cited as authority (rule) Interstate Fire Insurance Co. v. First Tape, Inc.
Tex. App. · 1991 · confidence medium
Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.— Houston [14th Dist.] 1971, writ dism’d).
cited Cited as authority (rule) The Dow Chemical Corporation v. Weevil-Cide Company, Inc. Research Products Company Hartford Accident & Indemnity Company
10th Cir. · 1990 · confidence medium
Co. v. Windsor, 353 A.2d 684, 686 (D.C.Ct.App.1976); Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.1971).
cited Cited as authority (rule) Chicago Title Insurance Co. v. Lawrence Investments, Inc.
Tex. App. · 1989 · confidence medium
Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex. Civ.App.— Houston [14th Dist.] 1971, writ dism’d) (citing Platte v. Securities Inv.
discussed Cited as authority (rule) Alliance Ins. Co., Inc. v. First Tape, Inc.
Tex. App. · 1986 · confidence medium
This court, in discussing one’s right under subrogation in Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App. — Houston [14th Dist.] 1971, writ dism’d), recognized that “[t]he insurer’s right of subrogation is derived from the rights of the insured, and is limited to those rights, and there can be no subrogation where the insured has no cause of action against the defendant.” The case of International Insurance Company v. Medical-Professional Building of Corpus Christi, 405 S.W.2d 867 (Tex.Civ.App.— Corpus Christi, 1966) is almost identical to the ca…
discussed Cited as authority (rule) Westchester Corp. v. Peat, Marwick, Mitchell & Co.
5th Cir. · 1980 · confidence medium
Tex. Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958 & Supp. 1979); Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967); see Citizens State Bank v. Shapiro, 575 S.W.2d 375, 386 (Tex. Civ.App.—Tyler 1978, writ ref’d n. r. e.); Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 540 (Tex.Civ.App.—Houston 1971).
cited Cited as authority (rule) Westchester Corporation v. Peat, Marwick, Mitchell & Company
5th Cir. · 1980 · confidence medium
Tyler 1978, writ ref'd n. r. e.); Fishel's Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 540 (Tex.Civ.App.
cited Cited as authority (rule) Republic National Life Insurance Co. v. United States Fire Insurance Co.
Tex. App. · 1979 · confidence medium
Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ dism’d).
discussed Cited "see" Guillot v. Hix
Tex. · 1992 · signal: see · confidence high
Long, The Law of Liability Insurance § 23.02[3][a] (1991); see Fishel’s Fine Furniture v. Rice Food Market, 474 S.W.2d 539, 541 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ dism’d); Insurance Co. of North America v. Fredonia State Bank, 469 S.W.2d 248, 252 (Tex.Civ.App.—Tyler 1971, writ ref’d n.r.e.); International Ins.
Retrieving the full opinion text from the archive…
FISHEL’S FINE FURNITURE, Appellant,
v.
RICE FOOD MARKET, Appellee
547.
Court of Appeals of Texas.
Dec 1, 1971.
474 S.W.2d 539
1971 Tex. App. LEXIS 2365
J. R. Ramsey, Momberger & Ramsey, Houston, for appellant., Arno W. Krebs, Jr., Fulbright, Crooker & Jaworski, Houston, for appellee.
Sam D. Johnson.
Cited by 20 opinions  |  Published
SAM D. JOHNSON, Justice.

Fishel’s Fine Furniture was covered by a fire insurance policy issued by Employers Mutual of Wausau Insurance Company, insuring against loss caused by fire. On August 7, 1967, a fire occurred in an adjacent store, Rice Food Market, causing fire damage to Fishel’s Furniture. To collect what it considered to be its damages, Fishel’s Furniture subsequently filed suit on November 16, 1967, in the District Court of Harris County against Employers Mutual Insurance Company. A compromise settlement was reached and payment was made by the Insurance Company to Fishel’s Furniture on April 14, 1970. The judgment was entered in that case on May 25, 1970.

Thereafter the instant suit was filed on April 9, 1971, against Rice Food Market. The suit was filed by Employers Mutual Insurance Company in the name of Fishel’s Furniture, and is based upon the alleged negligence of Rice Food Market in causing fire damage to the goods owned by Fishel’s Furniture and insured by the Insurance Company. The action was filed within two years of the date of entry of the heretofore described judgment. It was filed, however, over three years and eight months following the date of the fire. Summary judgment was granted in the trial court for the defendant-appellee, Rice Food Market, based on the two year statute of limitations because suit was not filed for more than two years from the date of the fire.

The parties are in agreement that the two year statute of limitations is applicable. The sole question is whether the two year statute runs from the date of the fire, or the date of the Insurance Company’s settlement with Fishel’s, which date, contends the appellant Employers Mutual Insurance Company, was the date its cause of action accrued.

A cause of action based upon negligence accrues at the time of the wrongful act, at which time the limitations commence. Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (Tex.Sup.1954). Fishel’s Furniture had a cause of action against Rice Food Market which accrued on August 7, 1967, the date of the fire. Fishel’s Furniture’s suit against Rice Food Market, had it brought one, must have been commenced within two years from the date of its accrual or be subject to an effective plea of limitations based on the two year statute, art. 5526, Vernon’s Tex.Rev.Civ.Stat.Ann.

[*541] Employers Mutual Insurance Company, in its original petition in this cause, pleaded this cause of action under its subrogation right arising by contract and by entry of judgment in the previously described first case between Fishel’s Furniture and the Insurance Company. Subro-gation “is a doctrine of equity, a substitution of another person in the place of the creditor so that the person in whose favor it is applied succeeds to the rights of the creditor in relation to the debt.” Platte v. Securities Inv. Co., 55 S.W.2d 551 (Tex.Com.App.1932, jdgmt adopted). One entitled to subrogation must work through the creditor whose rights he claims. Insurance Co. of No. America v. Fredonia State Bank, 469 S.W.2d 248 (Tex.Civ.App.-Tyler 1971, no writ); 83 C.J.S. Subrogation § 14, p. 612 (1953). If the subrogor has no rights, then the subrogee can have none. Platte v. Securities Inv. Co., supra; Pugh v. Clark, 238 S.W.2d 980 (Tex.Civ.App.-Galveston 1951, writ ref’d n. r. e.). “The insurer’s right of subrogation is derived from the rights of the insured, and is limited to those rights, and there can be no subrogation where the insured has no cause of action against the defendant.” International Ins. Co. v. Medical-Professional Bldg., 405 S.W.2d 867, 869 (Tex.Civ.App.-Corpus Christi 1966, writ ref’d n. r. e.). Employers Mutual Insurance Company has brought this suit subrogating or substituting itself for Fishel’s Furniture. Standing in the position of Fishel’s Furniture it must find itself barred by the two year statute of limitations which has been asserted here.

Employers Mutual’s cause of action is not one for indemnification or for contribution. The authority relied upon in such circumstances is not considered applicable or controlling. Neither are workmen’s compensation proceedings since the tolling of the statute of limitations there is statutory. See art. 8307, sec. 6a, Tex.Rev.Civ. Stat. This statute precludes the compensation carrier’s right of action until compensation has been paid.

The initial suit filed by Fishel’s Furniture against Employers Mutual presented the opportunity for Rice Food Market to be impleaded. Rule 38, Tex.R. Civ.P. allows a defendant to file a cross-action against a person not a party to the action who is or may be liable to him or to plaintiff for all or part of the plaintiff’s claim against the defendant. This procedure is not, as suggested by appellant, prohibited by Kirby Petroleum Company v. Jones, 383 S.W.2d 610 (Tex.Civ.App.-Tyler 1964, writ ref’d n. r. e.).

Appellant’s point of error is overruled. The judgment of the trial court is affirmed.