Clayton v. Volkswagenwerk, A. G., No. 17532

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtPEDEN
Citation606 S.W.2d 15
PartiesMary Lou CLAYTON, Appellant, v. VOLKSWAGENWERK, A. G., aka Volkswagenwerk Aktiengesellschaft, et al.,Appellees. (1st Dist.)
Docket NumberNo. 17532
Decision Date14 August 1980

Page 15

606 S.W.2d 15
Mary Lou CLAYTON, Appellant,
v.
VOLKSWAGENWERK, A. G., aka Volkswagenwerk
Aktiengesellschaft, et al.,Appellees.
No. 17532.
Court of Civil Appeals of Texas, Houston (1st Dist.).
Aug. 14, 1980.
Rehearing Denied Oct. 2, 1980.

Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for appellant.

Bean & Manning, Frank M. Bean, Houston, for appellees.

Before PEDEN, EVANS and WARREN, JJ.

PEDEN, Justice.

Mrs. Mary Lou Clayton appeals from a take nothing judgment in a personal injury suit premised on manufacturer's strict liability. She alleges that the trial court erred in: 1) refusing to strike or sever a cross-action, filed by Volkswagen against Lee's Exxon for indemnity or contribution, 2) permitting counsel for Volkswagen to tell

Page 16

the jury that the appellant and Lee's Exxon had settled their differences, 3) admitting into evidence a settlement agreement executed by Mrs. Clayton and Lee's Exxon, the cross-defendant, 4) refusing to admit into evidence certain portions of the deposition of Joe Harris, an expert witness who had died some three months before trial, 5) refusing to instruct the jury to disregard an objection made by counsel for Volkswagen, and 6) and 7) refusing to include in the charge two instructions she had offered.

We sustain the third point and we reverse and remand.

On June 2, 1973, Mrs. Clayton was driving her 1967 Volkswagen convertible north on Interstate Highway 45 at 60 to 65 miles per hour when it suddenly veered left onto the shoulder of the esplanade. She tried to regain control and get back onto the roadway, but before she was able to do so the car cut sharply to the right, skidding and spinning across the northbound section of the highway and onto a grassy embankment, where it rolled completely over and came to rest on its side. She suffered severe injuries in the accident, and we have just learned that while this case was on appeal, she died.

Mrs. Clayton filed suit against Jackson Lee, individually and doing business as Lee's Exxon, and against Volkswagenwerk Atkiengesellschaft and Volkswagen of America. She alleged that the Volkswagen automobile she was driving was so defectively designed and manufactured as to render it unreasonably dangerous, complaining specifically of the car's high (and to the rear) center of gravity, steering, and suspension system, and asserting that Volkswagen had failed to warn her of the car's dangerous propensities. She also alleged that Jackson Lee or his employees had negligently mounted the two rear tires which she had purchased at Lee's Exxon some three months before the accident and that the sudden deflation of the left rear tire which resulted from the improper mounting was a producing cause of the accident.

The case was reached for trial on February 5, 1979. During the preceding week, Mrs. Clayton and Lee concluded settlement negotiations and informed counsel for Volkswagen that Lee would be non-suited. Volkswagen on February 2 filed a cross-action against Lee for contribution or indemnity. Lee was non-suited by Mrs. Clayton on February 5, and the settlement agreement was executed on February 13.

The case was tried before a jury, which failed or refused to find from a preponderance of the evidence that the car was defectively designed, that Volkswagen failed to warn Mrs. Clayton of the risks involved in its operation, or that Lee negligently mounted the left rear tire. The trial court entered judgment on the verdict exonerating the appellees and Lee.

The appellant's first point of error is:

The trial court erred in failing to strike or sever Appellees' "Cross- Action" over and against Lee's Exxon filed on the eve of the trial, which was filed for the obvious purpose of demonstrating to the jury that Appellant had settled her differences with Lee's Exxon and that the latter party had an economic interest in the outcome of Mrs. Clayton's case against Appellees.

In deciding whether the trial court erred in failing to strike or sever the cross-action, we note that the question was called to the court's attention in a motion in limine. In it Mrs. Clayton asked the trial judge to instruct counsel for Volkswagen to obtain the court's permission, outside of the presence of the jury, before trying to develop or state, among other things: "V. That the Plaintiff and the Lee Defendants have settled their differences." Under this item she asserted that she had dismissed her claims against the Lee group and that Volkswagen's belated attempts to implead the Lee group for contribution and indemnity, "which should be stricken under normal and ordinary circumstances because of late filing," were without force as an effective pleading because of said dismissal. She argued that it was improper for Volkswagen to implead at this late hour for the...

To continue reading

Request your trial
5 practice notes
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...such agreements. 6 Citing Simmons, 558 S.W.2d at 858-59; Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979); Clayton v. Volkswagenwerk, 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.); Greiner v. Zinker, 573 S.W.2d 884 (Tex.Civ.App.--Beaumont 1978, no writ); David R. ......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...or agents as to the guaranty to the Smithwicks if those persons sought to aid the Smithwicks recover. Clayton v. Volkswagenwerk, 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Of course, the Smithwicks preempted Scurlock by mentioning the matter during voir dire ......
  • White Budd Van Ness Partnership v. Major-Gladys Drive Joint Venture, MAJOR-GLADYS
    • United States
    • Court of Appeals of Texas
    • September 6, 1990
    ...then an exception to this rule is recognized. Here, Contractors, Inc., was not a party at the trial. See Clayton v. Volkswagenwerk A.G., 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). The rule has been established that a party-litigant is not entitled to present ......
  • Jordan v. Shields, No. 0983182CV
    • United States
    • Court of Appeals of Texas
    • June 28, 1984
    ...in excluding evidence of the settlement. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977). 1 Clayton v. Volkswagenwerk A.G., 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Appellant's second point of error is Appellant's third point of error is that ......
  • Request a trial to view additional results
5 cases
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...such agreements. 6 Citing Simmons, 558 S.W.2d at 858-59; Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979); Clayton v. Volkswagenwerk, 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.); Greiner v. Zinker, 573 S.W.2d 884 (Tex.Civ.App.--Beaumont 1978, no writ); David R. ......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...or agents as to the guaranty to the Smithwicks if those persons sought to aid the Smithwicks recover. Clayton v. Volkswagenwerk, 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Of course, the Smithwicks preempted Scurlock by mentioning the matter during voir dire ......
  • White Budd Van Ness Partnership v. Major-Gladys Drive Joint Venture, MAJOR-GLADYS
    • United States
    • Court of Appeals of Texas
    • September 6, 1990
    ...then an exception to this rule is recognized. Here, Contractors, Inc., was not a party at the trial. See Clayton v. Volkswagenwerk A.G., 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). The rule has been established that a party-litigant is not entitled to present ......
  • Jordan v. Shields, No. 0983182CV
    • United States
    • Court of Appeals of Texas
    • June 28, 1984
    ...in excluding evidence of the settlement. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977). 1 Clayton v. Volkswagenwerk A.G., 606 S.W.2d 15 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Appellant's second point of error is Appellant's third point of error is that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT