City of Coleman v. Smith, 2336.

• Decision Date: 12 February 1943
• Docket Number: No. 2336.,2336.
• Citation: 168 S.W.2d 936
• Parties: CITY OF COLEMAN v. SMITH et al.
• Court: Texas Court of Appeals

168 S.W.2d 936

CITY OF COLEMAN v. SMITH et al.

No. 2336.

Court of Civil Appeals of Texas. Eastland.

February 12, 1943.

Rehearing Denied March 5, 1943.

Appeal from District Court, Coleman County; A. O. Newman, Judge.

Action by Elder Smith and Elder Wayne Smith, a minor, suing by his next friend, Joe L. Ward, against the City of Coleman and others for injuries allegedly caused by contact with an electric power line owned by the defendant. The plaintiffs entered into a compromise agreement with the defendants other than the City of Coleman, and an agreed judgment was rendered against them in favor of the plaintiffs. From an adverse judgment, the City of Coleman appeals.

Judgment affirmed.

Dibrell & Snodgrass, of Coleman, for appellant.

Baker & Baker, of Coleman, for appellees.

GRISSOM, Justice.

In this case Elder Smith, the father of Elder Wayne Smith, and Elder Wayne Smith, a minor, suing by his next friend, Joe L. Ward, sought judgment against the City of Coleman for damages sustained by reason of injuries to said minor alleged to have been caused by contact with an electric line owned by the City and used by it in its business of generating and selling electricity. Originally A. J. Wallace, M. E. Ruby and L. R. Bowden were made co-defendants with said City and a joint liability was asserted against all defendants. Wallace, Ruby and Bowden compromised and settled the case with plaintiffs as to said defendants and an agreed judgment was rendered against Wallace, Ruby & Bowden awarding plaintiffs recovery in the aggregate sum of $300 apportioned $100 to Elder Wayne Smith and $200 to Elder Smith. Thereafter the cause proceeded to trial against the City of Coleman as the sole defendant. Upon a jury verdict for $900, judgment was rendered for the minor against the City for $800. The City has appealed. This is a companion case to City of Coleman v. Wilson J. Kenley, 168 S.W.2d 926, this day decided by this court. The compromise settlement and agreed judgment herein is the same as in the Kenley case. In our opinion in the Kenley case the contract and judgment is fully set out and is here referred to. The main contention in the Kenley case, that is, that the effect of the compromise settlement and agreed judgment was to release the City as a matter of law is reasserted in this case. The only difference in the two cases, pertinent to this question, is that in the instant case, which was tried after the Kenley case, the City did plead that by virtue of the compromise settlement and agreed judgment it had been released. We are of the opinion that such pleading does not change the result. Our construction of the contract and judgment in the Kenley case requires us to overrule the same contention in this case. The failure of the City in the Kenley case to plead release was merely an additional reason for our conclusion in that case that the City had not been released from liability to plaintiff.

Issues involving grounds of recovery based on negligence were found by the jury in favor of plaintiffs, as follows: That defendants' electric line was knocked from its pole by blasts set off by Wallace, Bowden and Ruby. The jury found "that the failure of the defendants (the City's) agents and employees to inspect said electric line between the time it was so knocked from said pole (and the time of the injuries complained of by plaintiffs on the 17th day of August, 1940) was negligence" and a proximate cause of the injuries to Elder Wayne Smith. The jury found that the officers and employees of the City "did not exercise such care and prudence to discover the condition of its electric line on the occasion in question as an ordinary prudent person would have exercised under the same or similar circumstances.

As against the findings of damages ($900 to Elder Wayne Smith and $15 to Elder Smith), the court offset the respective recoveries awarded in said compromise judgment against the damages found against the City. The result was to decrease the award to the minor from $900 to $800 and cancel the award of $15 to Elder Smith. The Court rendered judgment awarding Elder Wayne Smith $800 and decreed that Elder Smith take nothing.

In our opinion, there was no error in the refusal of the court to submit the issue of unavoidable accident. The issue was not pleaded. If the evidence raised the issue such testimony has not been pointed out and we have not observed such testimony. The pleadings of both parties were filed after R. C. P. 94 and 279 became effective.

We overrule appellee's contention that Elder Wayne Smith was entitled to judgment in the sum of $900, or, in other words, that he was entitled to a judgment for the full amount of his damages as found by the jury without offsetting said amount with the $100 paid to him by Wallace, Bowden and Ruby. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703; Hunt v. Ziegler, Tex.Civ.App., 271 S.W. 936; Robertson v. Trammel, 37 Tex.Civ.App. 53, 83 S.W. 258, 265; El Paso & S. R. Co. v. Darr, Tex.Civ.App., 93 S.W. 166, 171; St. Louis, I. M. & S. R. Co. v. Bass, Tex.Civ.App., 140 S.W. 860, 862.

We are of the opinion there was evidence sufficient to support the finding of damages in the sum of $900.

Appellant complains of the court's definition of proximate cause which was as follows: "By the term `Proximate Cause', as used in this charge, is meant a cause which, in natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which the event would not have occurred; and, to be a proximate cause of an event it should have been reasonably anticipated and foreseen by a person of ordinary prudence in the exercise of ordinary care that the event, or some similar event would have resulted from such cause as a probable and natural consequence." This definition is substantially the same as given in Browning v. Graves, Tex.Civ. App., 152 S.W.2d 515, writ refused, and followed in Texas Cities Gas Company v. Dickens, Tex.Civ.App., 156 S.W.2d 1010, 1015. In our opinion the definition embodied the essential elements.

The evidence was sufficient to support the jury's answer to Special Issue No. 2, to the effect that the failure of defendant's agents and employees to inspect its electric line was negligence.

We have given careful consideration to all of appellant's contentions. They are overruled. We think reversible error is not shown. The judgment is affirmed.

FUNDERBURK, Justice (dissenting).

Appellant's first point is stated thus: "The error of the Court in overruling Appellant's motion for a judgment on the ground that Appellee had received full satisfaction for all damages suffered in his settlement with Appellant's co-defendants, Wallace, Ruby and Bowden." Two judgments were rendered in this case. The first judgment was based upon agreement of all parties. The agreement as recited in the judgment was as follows:

"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 & 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 plaintiff's 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 17, 1940, and as alleged in plaintiff's petition, whether said injuries or damages 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 * * * And said plaintiffs do hereby indemnify said defendants Wallace, Ruby & 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 of action, if any, which plaintiffs may have against defendant The City of Coleman, Texas; but the covenant not to sue on the part of all defendants [plaintiffs?] herein shall be applicable to the injuries and damages, if any, sustained by Elder Wayne Smith, and persons claiming by through and under him."

The judgment based upon said agreement (as distinct from the recited terms of the agreement) provides as follows: "It is further ordered, adjudged and decreed by the Court that in Cause No. 6100-B [this suit] plaintiff Elder Smith, individually, and his attorneys recover of and from the defendants, Wallace, Ruby and Bowden, the sum of $200.00, and that plaintiff Elder Wayne Smith, acting by and through his next friend do have and recover of and from defendants Wallace, Ruby & Bowden, the sum of $100.00 and one-half of the costs of court accrued to date, to be paid into...