Callihan Interests, Inc. v. Duffield

• Decision Date: 20 November 1964
• Docket Number: No. 3909,3909
• Citation: 385 S.W.2d 586
• Parties: CALLIHAN INTERESTS, INC., Appellant, v. Carl E. DUFFIELD, Jr., Appellee.
• Court: Texas Court of Appeals

Page 586

385 S.W.2d 586

CALLIHAN INTERESTS, INC., Appellant, v. Carl E. DUFFIELD, Jr., Appellee.

No. 3909.

Court of Civil Appeals of Texas, Eastland.

Nov. 20, 1964.

Rehearing Denied Jan. 8, 1965.

McMahon, Smart, Sprain, Wilson & Camp, Marvin S. Sprain, Abilene, for appellant.

Mays, Leonard, Moore & Dickson, George W. Leonard, Jr., Sweetwater, Whitten, Harrell & Wilcox, Abilene, for appellee.

GRISSOM, Chief Justice.

Nannie Box et al sued Callihan Interests, Inc. in Callahan County for damages to their land and water caused by Callihan's disposal of salt water in connection with its production of oil. Callihan sought leave to file a third party action against Bridwell, Fulwiler and Carl E. Duffield, Jr. who were alleged to be likewise disposing of their salt water on adjacent premises and contributing to Box's damage. The court permitted said third party action by Callihan only upon condition that its cause of action for indemnity or contribution against Duffield, Bridwell and Fulwiler be severed from the cause of action asserted by Nannie Box et al against Callihan Interests, Inc. Thereupon, Callihan filed a third party complaint bringing in Duffield et al and alleged that the sole cause of the damage to Box et al was the manner in which said third party defendants disposed of their salt water. Callihan also sought indemnity or, in the alternative, contribution from them. Duffield filed a plea of privilege to be sued in Taylor County and, by agreement, the case was transferred there.

All of said parties, except Duffield, agreed to a judgment which was rendered awarding Box et al judgment for $18,500.00 against Callihan and awarding Callihan judgment against Bridwell and Fulwiler each for $800.00 contribution with provision that said judgment should not release the cause of action asserted by Callihan against Duffield. Callihan, Bridwell and Fulwiler paid said judgment in accord with its provisions.

Duffield filed a motion for summary judgment in Callihan's third party proceeding against him. The gist of that motion was that Callihan could not recover contribution from him because said judgment in favor of Box et al, more than $16,000.00 of which had been paid by Callihan, was an agreed judgment, not one judicially determined at the conclusion of a trial, and, therefore, under the terms of Article 2212, Callihan had no cause of action for contribution against Duffield. Duffield's motion for summary judgment was granted and judgment was rendered accordingly. Callihan has appealed.

Callihan paid more than $16,000.00 on the judgment and to that extent discharged the liability, if any, of Duffield to Box. Under the common law Callihan has no cause of action against Duffield for either contribution or indemnity. The only question is whether Article 2212, as it has been construed by Texas courts, gave Callihan the cause of action it asserts. No Texas case that directly answers that question has been cited and, after diligent search, we have found none. Callihan was not permitted in the original case to pursue his claim against Duffield and he should be permitted to maintain this independent suit for contribution against Duffield if the cause of action he asserts comes within the purpose and intention of said statute. The trial court, supported by the decision in Brown & Root, Inc. v. United States, 5 Cir., 198 F.2d 138, apparently held that Callihan could not maintain the suit because it was based upon an agreed judgment and not upon a judgment arrived at by judicial determination at the conclusion of a trial. We think this is not in accord with the interpretation of the statute by the Texas Courts which is to the effect that the purpose of the statute was to create a cause of action for contribution and not to prescribe the procedure by which it is to be obtained. The statute created a cause of action for the benefit of one tort-feasor who, by paying a judgment, discharged the liability of his joint tortfeasor. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776; Gattegno v. The Parisian (Com.App.) 53 S.W.2d 1005, 1007 and 1008; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, (Sup.Ct.), 368 S.W.2d 594. To hold that Callihan lost its right to contribution because it agreed to the judgment, under circumstances where it was impossible for it to have the liability of Duffield determined, would be contrary to the policy of the law to encourage settlement of cases. Callihan's asserted cause of action against Duffield is not based strictly upon the judgment, which did not bind Duffield, but upon the fact that Callihan by paying the judgment against it discharged more than its just share of its and Duffield's alleged joint liability to Box. Huggins v. Johnston, 120 Tex. 21, 35 S.W.2d 688, 689. By the literal terms of Article 2212 the right to contribution is granted to one joint tort-feasor against another only when a plaintiff has recovered judgment jointly against both and one has paid the judgment. Notwithstanding its limited terms, our courts have held that the purpose of the statute was to place the burden equally upon joint tort-feasors; that it was enacted to prevent inequities between joint tort-feasors; that a defendant tort-feasor may bring in other wrongdoers not sued by the plaintiff; that a joint judgment against tort-feasors is not required as a prerequisite to recovery of contribution by one against another and that the ...