City of Houston v. Sam P. Wallace & Co., 5844
| Decision Date | 30 November 1978 |
| Docket Number | No. 5844,5844 |
| Citation | 574 S.W.2d 864 |
| Court | Texas Court of Appeals |
| Parties | CITY OF HOUSTON, Appellant, v. SAM P. WALLACE & CO. et al., Appellees. |
Robert M. Collie, Jr., City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for appellant.
Robert L. Adams, Wyckoff, Russell, Dunn & Frazier, Simeon T. Lake, III, Fulbright & Jaworski, John A. Barker, Gripp, Walden & McClure, Houston, for appellees.
On October 19, 1971, an explosion and fire damaged the equipment in a high-voltage electrical switchgear cabinet located in the Central Chilled and Hot Water Plant at the Houston Intercontinental Airport, an airport owned and operated by appellant City of Houston (hereinafter "City"). At that time appellee Sam P. Wallace & Co. ("Wallace"), under contract with City, was constructing certain additions to the Central Chilled and Hot Water Plant. Appellee Precision Insulation Company ("Precision") was Wallace's subcontractor on the job. Maurice Little ("Little"), an employee of Precision, was standing on the switchgear box at the time of the explosion and fire and suffered personal injuries. City sued Wallace and Precision for the damages to its electrical switchgear pleading negligent causation against them. In another suit, Little sought recovery of damages against Wallace, asserting his personal injuries were caused by Wallace's negligence. The cases were consolidated for trial after which Wallace and Precision each pleaded for contribution and indemnity against the other. Wallace also pleaded for contribution and indemnity against City for any recovery by Little against Wallace. The consolidated case was tried to a jury.
After the parties had rested their proof, but before arguments to the jury, Little and Wallace entered into a settlement agreement. City was not told of the settlement. Little remained in the case and argued to the jury. After argument, but before verdict, Little took a nonsuit in his case against Wallace. City's counsel was not present in the courtroom when the nonsuit was taken, but his absence is not explained in the record. Thereafter, the jury returned their verdict which was favorable to both Wallace and Precision on the liability issues against them by City. Judgment was rendered on the verdict that City take nothing. The judgment also recited Little's nonsuit of Wallace.
By way of motion for mistrial prior to judgment and motion for new trial after judgment, City asserted that it first learned of the settlement agreement and the nonsuit after verdict when a form-judgment was circulated; that a part of the consideration for the settlement agreement was that Little's attorney would argue against City and in favor of Wallace on City's issues against Wallace; that Little's attorney did so and thereby "deceived the jury into believing that Little had changed his position from that during trial and had been persuaded that Wallace had not, after all, been responsible for or negligently caused the fire in question, and therefore added unfairly to the weight of the argument against City's position on the issues"; that if City had known of the settlement prior to argument "it would have offered evidence to such effect so as to allow the jury to know the inducement for co-plaintiff's argument and City would further have objected to any argument by co-plaintiff"; that the trial tactic employed by Little and Wallace of settlement and then argument by Little's attorney in favor of Wallace and against City after Little's "change of posture, alignment and pecuniary interest" without City's knowledge violated "the fundamental rule of law whereby a party is entitled to inform the jury or finder of fact of the pecuniary interest each adverse party has to the outcome of the case"; and that such action denied City a fair trial and caused rendition of an improper verdict and judgment against City.
City's motions were overruled. It assigns error to those rulings for reversal of the judgment and reasserts the complaints set forth in the motions. However, City concedes in its brief that Little's counsel "could have argued in the manner in which he did had it been in his interest as an advocate to do so, or, had he even done so mistakenly"; and it also admits that it knew during the latter portion of the jury argument by Little's counsel that Little's "alignment (against Wallace) was disturbed," and that at that time "it became readily apparent that plaintiff Little had switched sides." Basically, City's complaints are these: (1) If City had known of the settlement prior to verdict it would have offered that fact for the jury's consideration to explain the argument to be made by Little's counsel; and (2) the "secret settlement agreement and resulting jury argument" were a conspiracy by Little and Wallace against City, and they were "so patently unfair and obviously prejudicial" to City that they caused an improper verdict and judgment. We overrule those contentions and affirm the judgment.
The written settlement agreement between Little and Wallace reads in full as follows:
On the hearing of City's motion for new trial, Little's lawyer testified as follows: ...
To continue reading
Request your trial
-
City of Houston v. Sam P. Wallace and Co.
...and Little and the trial court rendered judgment that City of Houston take nothing. The court of civil appeals affirmed the judgment. 574 S.W.2d 864. We reverse the judgments of the courts below and remand the cause for another City of Houston sued Wallace Company and Precision Insulation C......