City of Coleman v. Kenley

• Decision Date: 12 February 1943
• Docket Number: No. 2326.,2326.
• Citation: 168 S.W.2d 926
• Parties: CITY OF COLEMAN v. KENLEY.
• Court: Texas Court of Appeals

168 S.W.2d 926

CITY OF COLEMAN v. KENLEY.

No. 2326.

Court of Civil Appeals of Texas. Eastland.

February 12, 1943.

Rehearing Denied March 5, 1943.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Action by Wilson J. Kenley against the City of Coleman and others to recover for the death of plaintiff's minor son by electrocution. A compromise settlement was agreed on by plaintiff and the defendants other than the City of Coleman, and they were dismissed from the action. From a judgment in favor of the plaintiff against the City of Coleman, the City of Coleman appeals.

Judgment affirmed.

Dibrell & Snodgrass, of Coleman, for appellant.

Baker & Baker, of Coleman, for appellee.

GRISSOM, Justice.

Wilson J. Kenley instituted this suit against the City of Coleman and A. J. Wallace, M. E. Ruby and L. R. Bowden to recover damages suffered by reason of the accidental death by electrocution of his minor son, W. J. Kenley, Jr. On March 10, 1942, the cause came on for trial, whereupon a compromise settlement was agreed upon by Plaintiff and Wallace, Ruby and Bowden, whereby in consideration of the payment to plaintiff of $2,000, Wallace, Ruby and Bowden (hereinafter referred to as Wallace et al.) were dismissed from the suit. Plaintiff then (on March 10, 1942), filed an amended petition in which the City of Coleman was the sole defendant and in which the City alone was charged with negligently causing the death of his boy. The cause then proceeded to trial against the City as the sole defendant. Upon a jury verdict finding the damages suffered by Plaintiff to be $4,500, judgment was rendered against the City for $2,500, thus crediting the judgment with the $2,000 paid by Wallace et al. The City has appealed.

The City's first four points are that the Court erred (1) in overruling Appellant's motion for judgment, (2) in refusing to instruct a verdict for the City, and (3) in overruling the City's second and (4) third grounds of his motion for judgment. Under these points the City presents two propositions, stated as follows:

One: "Appellee, having received a full satisfaction and compensation for damage resulting from the tortious death of his son, W. J. Kenley, Jr. in the settlement with this Appellant's alleged joint tort-feasors, Wallace, Ruby and Bowden, was not entitled to any recovery herein against Appellant."

Two: "The appellee having accepted a payment of $2000.00 from Wallace, Ruby and Bowden, alleged joint tort-feasors with Appellant City of Coleman, in full discharge, release and satisfaction of all claim against them arising or growing out of the death of W. J. Kenley, are precluded from recovering against the Appellant for any damage allegedly arising out of said death."

Kenley answered said propositions, among other things, with counter-points asserting that the compromise settlement and agreed judgment between Kenley and Wallace et al. (made with the knowledge and consent of the City and the City being a party to the agreement and judgment) did not release the City, but on the contrary in the agreement and judgment Kenley expressly reserved the right to sue the City for damages, and that it was not contemplated or intended by any of the parties that the payment by Wallace et al. was to be in full satisfaction of the damages suffered by plaintiff; that plaintiff accepted $2,000 from Wallace et al. only as part satisfaction of his damages and was not thereby estopped from seeking the balance of his damages from the City.

At the time of the compromise settlement, agreed judgment and dismissal of Wallace et al. from the suit, there was a companion case pending in the same court against the same defendants, that is, the case of Elder Smith et al. v. City of Coleman et al. Smith also made a compromise settlement with Wallace et al. Thereupon the following agreed judgment was rendered in each of said cases:

"On this the 10th day of March A. D. 1942, came on to be heard both of the above styled and numbered causes, and came all parties in person and by attorneys and announced ready for trial in each of said cases; whereupon, the parties announced to the Court that as to the defendants, Wallace, Ruby & Bowden, and each of them all issues of law and of fact had been finally disposed of and concluded by a compromise settlement agreement, subject to the approval of the Court, which is as follows:

"It is agreed by and between Wilson J. Kenley and his wife, Ida Kenley, the City of Coleman, Texas, a municipal corporation, and the defendants A. J. Wallace, L. R. Bowden, and M. E. Ruby that judgment may be entered in term time or vacation in cause No. 6099-B in favor of plaintiffs that plaintiffs recover of and from defendants Wallace, Ruby & Bowden the sum of $2000.00 (Two Thousand and No/100 Dollars) and one-half of the costs of court accrued to this date in full, final and complete release, discharge and satisfaction of any and all causes of action which plaintiff Wilson J. Kenley, or any person claiming by, through or under him, or persons in privity with him, his heirs, assigns and personal representatives; or, any person claiming by, through or under W. J. Kenley, deceased, his heirs, assigns or representatives, or beneficiaries under the death statute, might have against said defendants, Wallace, Ruby & Bowden, their employees, agents and servants, or any person in privity with any of them, for damages, actual or exemplary, under the death statute [Vernon's Ann.Civ.St. art. 4671] for loss of earnings and services, medical expense, funeral expense, physical pain or sufferings, property damage, or any other element of damage, whether mentioned herein, or not, arising or growing out of the death of W. J. Kenley, on or about August 17th, 1940, or resulting from any matter mentioned in the pleadings herein. Said plaintiff does hereby agree to indemnify said defendants, Wallace, Ruby & Bowden against any action or cause of action asserted against them by any person claiming damages by reason of said death. It is agreed that this is a compromise settlement agreement; that defendants aforesaid do not admit liability, but expressly deny liability; and this settlement is made for the purpose of buying the peace of said defendants and to avoid further expense.

"It is further agreed that this settlement is made solely and exclusively upon the judgment of plaintiffs and their attorneys and in making said settlement plaintiffs are not relying upon any act, statement, representation or conduct on the part of defendants herein; and, it is further agreed that by making this settlement plaintiffs are not releasing any cause of action, if any, against defendant, the City of Coleman, Texas, and that this is not intended as a release of said City of Coleman by plaintiffs.

"The City of Coleman, Texas, acting by and through its attorneys of record duly empowered in the premises, do hereby release, relinquish and discharge unto defendants A. J. Wallace, L. R. Bowden and M. E. Ruby any action or cause of action for damages, contribution, indemnity or for any other matter growing out of the death of W. J. Kenley, deceased, or growing out of any injury or damage to Elder Wayne Smith, Elder Smith, or any other person by virtue of the accident in which said Kenley and Smith received injuries on or about August 17, 1940, and alleged in plaintiff's petitions in either of the foregoing causes; and, does hereby expressly covenant not to sue or aid, abet or assist any other person in suing defendants Wallace, Ruby & Bowden, or persons in privity with them for any of said matters. Said defendants Wallace, Ruby & Bowden do hereby release their action and cause of action, if any, against the City of Coleman, Texas, and do hereby covenant not to sue or further prosecute their suit against said City of Coleman, Texas, for any of the matters mentioned in the pleadings herein, in either of said causes.

"It is further agreed that judgment shall be entered in term time or in vacation in favor of Elder Smith, individually, for the sum of $200.00 (Two Hundred and No/100 Dollars) and in favor of Elder Wayne Smith, acting herein by and through Joe L. Ward, as his next friend for the sum of $100.00 (One Hundred Dollars) and against the defendants A. J. Wallace, L. R. Bowden and M. E. Ruby, together with one-half of the costs of Court accrued to date which are now unpaid in full, final and complete release, discharge and satisfaction of any and all claims for any matter alleged in plaintiffs petition herein; and, said sum having been paid by defendants to plaintiffs, receipt of which is acknowledged, the undersigned, Elder Smith, Elder Wayne Smith, the mother of Elder Wayne Smith, and the next friend of the said Elder Wayne Smith, do hereby release all actions and causes of action for damages, actual or exemplary, for personal injuries, medical expense, loss of service, loss of earning capacity, or for any other matter, whether mentioned herein or not, arising out of the alleged accident in which Elder Wayne Smith, a minor, was involved on or about August 17th, 1940, and as alleged in plaintiff's petition, whether said injuries or damage are known or unknown, and whether or not same have accrued and materialized at this date, or not, as against the defendants Wallace, Ruby & Bowden. It is further agreed that this settlement is made solely and exclusively of the free will and accord and upon the exclusive judgment of plaintiffs and their attorneys and that plaintiffs are not relying to any extent on any act, statement, conduct or representation on the part of defendants or persons in privity with them. And said plaintiffs do hereby indemnify said defendants Wallace, Ruby and Bowden against any action or recovery against said defendants Wallace, Ruby & Bowden, for any of the matters mentioned in the pleadings herein, or which could have been mentioned herein. This agreement, however, shall not constitute any release of any cause...