Beaumont Coca Cola Bottling Co. v. Cain

• Decision Date: 22 December 1981
• Docket Number: No. 8717,8717
• Citation: 628 S.W.2d 99
• Parties: BEAUMONT COCA COLA BOTTLING CO., Appellant, v. Francis CAIN, Appellee.
• Court: Texas Court of Appeals

Page 99

628 S.W.2d 99

BEAUMONT COCA COLA BOTTLING CO., Appellant, v. Francis CAIN, Appellee.

No. 8717.

Court of Appeals of Texas, Beaumont.

Dec. 22, 1981.

Rehearing Denied Jan. 14, 1982.

David E. Bernsen, Beaumont, for appellant.

Phillip Babin, Beaumont, Jim Sharon Bearden, Orange, for appellee.

KEITH, Justice.

The appeal is from a summary judgment and the only question presented is the application of the two-year statute of limitation to appellant's claim for indemnity or contribution.

Appellee, Francis Cain, was the driver of an automobile on September 21, 1978, when it was struck from the rear by a truck operated by an employee of appellant. Suit was filed February 1, 1979, but our record does not indicate the activity, if any, which took place in the case before March 19, 1980. On that date the petition was amended to include Lenora Nelson, a passenger in the Cain vehicle, as a plaintiff. Nearly a year later, on February 27, 1981, appellant filed its cross action against Mrs. Cain seeking indemnity or contribution for any sums which might be awarded to Nelson in her suit.

Appellee, Mrs. Cain, answered the cross action solely by a general denial and shortly thereafter filed a motion for summary judgment contending that "the Statute of Limitations has run on any cause of action that the Defendant/Cross-Plaintiff may now assert against Plaintiff." ¹ After notice and hearing, the trial court sustained such motion, severed the claim for contribution from the main suit, and this appeal followed. Appellant has but one point of error, asserting that the claim for contribution is not barred by the two-year statute of limitation. ²

Appellee seeks to uphold the summary judgment upon this rationale set out in her brief:

"Based on V.A.T.S. Art. 5539(c) and Smith v. Lone Star Cadillac, Inc., 470 S.W.2d 791 (Tex.Civ.App.-Waco, 1971, no writ), Cain obtained Summary Judgment that the cross-action of Coca Cola was barred by limitations."

We note that the "cross-action" mentioned in the foregoing excerpt was one seeking contribution from appellee Cain for damages which Coca Cola might have to pay to Cain's co-plaintiff, Nelson. We do not agree with the rationale of appellee and reverse the judgment for the reasons now to be stated.

With all due deference and respect to the Court and to the author of Smith v. Lone Star Cadillac, Inc., 470 S.W.2d 791 (Tex.Civ.App.-Waco 1971, no writ), we decline to follow the holding therein so as to make Art. 5539c, Tex.Rev.Civ.Stat.Ann. (Supp.1980-1981), applicable to actions for contributions between tortfeasors. The cited statute is one providing for a limited extension of the limitation period to a counterclaim or a cross claim arising out of the same transaction as the plaintiff's suit. See Hobbs Trailers v. J. T. Arnet Grain Co., Inc., 560 S.W.2d 85, 88 (Tex.1978).

The trial court has held in this case that since Coca Cola did not come within the extended period afforded by Art. 5539c, its claim was barred by the two-year statute of limitation. We are of the opinion that the statute of limitation did not begin to run until Coca Cola's right to contribution accrued. City of San Antonio v. Talerico, 98 Tex. 151, 81 S.W. 518, 520 (Tex.1904); Sims v. Southland Corporation, 503 S.W.2d 660, 663 (Tex.Civ.App.-Tyler 1973, writ ref'd n. r. e.).

Indeed, prior to the enactment of Art. 2212a, Tex.Rev.Civ.Stat.Ann. (Supp.1980-1981), upon the adoption of the theory of comparative negligence, a defendant in a tort action did not need to make his tortfeasor a party to the original action but could pursue him in a separate action brought after the conclusion of the original suit. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776 (1944).

In the language used by the court in Callihan Interests, Inc. v. Duffield, 385 S.W.2d 586, 587 (Tex.Civ.App.-Eastland 1964, writ ref'd), the purpose of the statute was "to create a cause of action for the benefit of one tort-feasor who by paying a judgment discharges more than his just share of the joint liability of himself and another joint tort-feasor to the injured party." Obviously, such a...