Cox v. Rio Grande Valley Telephone Co.

• Decision Date: 23 January 1929
• Docket Number: (No. 8122.)
• Citation: 13 S.W.2d 918
• Parties: COX v. RIO GRANDE VALLEY TELEPHONE CO.
• Court: Texas Court of Appeals

13 S.W.2d 918

COX v. RIO GRANDE VALLEY TELEPHONE CO.

(No. 8122.)

Court of Civil Appeals of Texas. San Antonio.

January 23, 1929.

Rehearing Denied February 20, 1929.

Error from District Court, Hidalgo County; J. E. Leslie, Judge.

Action by Ruby Cox against the Rio Grande Valley Telephone Company, in which defendant by cross-action impleaded the St. Louis, Brownsville & Mexico Railway. To review an adverse judgment, plaintiff prosecutes error. Affirmed.

K. C. Barkley, L. H. Kenner, and W. K. Richardson, all of Houston, for plaintiff in error.

King, Wood & Morrow, of Houston, C. C. English, of Dallas, and Wm. E. Loose, of Houston, for defendant in error.

SMITH, J.

In the course of his employment as a brakeman on the line of the St. Louis, Brownsville & Mexico Railway, plaintiff in error, Cox, was swept from atop a moving box car by an overhanging telephone wire, which was suspended over and across the railway company's right of way. As a result of the accident, which occurred near Mercedes, in Hidalgo county, plaintiff in error was seriously injured, and brought suit for damages in one of the district courts of Harris county against said railway company and the Rio Grande Valley Telephone Company.

Subsequently plaintiff in error compromised and settled his claim against the railway company, which paid him $4,750 in such settlement, and in written agreements released that company from any and all claims he had, or might have, against it in the matter, obligated himself to not only hold it harmless against any further responsibility either to himself in a direct action or to other tort-feasors by cross-action who might be found liable for his injuries, but to reimburse the railway company, for its payment to him, out of any recovery he might thereafter have against the telephone company, the Valley Ice & Electric Company, or any other tort-feasor.

It was stipulated in these agreements that plaintiff in error would dismiss his Harris county suit as against the railway company, and would thereafter institute and prosecute a suit in Hidalgo county against the telephone company and any other party which might be deemed liable to him for his injuries, and that, out of any recovery he might obtain in such suit, he would reimburse the railway company for the amount it had paid him by virtue of these agreements and release. It was further and specifically stipulated in these agreements that plaintiff in error did not thereby surrender, but expressly reserved, his right to pursue any other tort-feasors, and to enforce his cause of action against them, notwithstanding his release of the railway company. We might as well say now, as later, that by this reservation plaintiff in error avoided the rule exemplified in Hunt v. Ziegler (Tex. Civ. App.) 271 S. W. 936; Id. (Tex. Com. App.) 280 S. W. 546, that an unqualified release of one tort-feasor releases all, and brought his case within the rule that a release, qualified as in this case, amounts to but a covenant not to sue the party released, thereby leaving the injured party the right to pursue other tort-feasors. Robertson v. Trammell, 37 Tex. Civ. App. 53, 83 S. W. 258; Id., 98 Tex. 364, 83 S. W. 1098; El Paso & S. R. Co. v. Darr (Tex. Civ. App.) 93 S. W. 166; St. Louis, I. M. & S. R. Co. v. Bass (Tex. Civ. App.) 140 S. W. 860.

In pursuance of the agreement mentioned, plaintiff in error filed the instant suit in a district court of Hidalgo county against the telephone company, alone, to recover on account of the injuries in question, alleging that the defendant negligently placed and maintained the wire over and across the railway right of way at such height as to sweep plaintiff in error from his lawful position atop of the passing freight car. The telephone company answered, and set up a cross-action and sought recovery over against the railway company, thereby impleaded. The railway company answered, and all parties in due time proceeded to trial. At the conclusion of the trial the court directed a verdict in favor of the telephone company against the plaintiff, and upon this verdict rendered judgment in accordance therewith, and dismissed the railway company as a natural corollary. Cox, as plaintiff below, has prosecuted writ of error.

Defendant in error has filed motion to dismiss the writ of error, upon the ground that the railway company is not made a party to the petition or an obligee in the writ of error bond. The railway company has filed its appearance in the proceedings in this court, and submitted itself to the jurisdiction of this court for all purposes of the appeal. We conclude that this instrument has the effect of curing the omission of the railway company from the petition, and that, under the circumstances of the case presented, it is apparent that the interests of plaintiff in error and the railway company are not adverse, but are quite in common, rendering it unnecessary to include the latter as...