Cypress Creek Utility Service Co., Inc. v. Muller

• Decision Date: 06 October 1982
• Docket Number: No. C-1025,C-1025
• Parties: CYPRESS CREEK UTILITY SERVICE COMPANY, INC., Petitioner, v. Mike MULLER et al., Respondents.
• Court: Texas Supreme Court

Page 860

640 S.W.2d 860

CYPRESS CREEK UTILITY SERVICE COMPANY, INC., Petitioner, v. Mike MULLER et al., Respondents.

No. C-1025.

Supreme Court of Texas.

Oct. 6, 1982.

Vinson & Elkins, Michael G. Terry and B. Lee Ware, Houston, for petitioner.

Don R. Riddle, Bass, Webb, Fant, McKenna & Wheless, Timothy E. McKenna, Larry Bass, David E. Lueders and David C. Whitten, Sullivan, Bailey, King, Bishop & Sabom, George M. Bishop, Houston, for respondents.

SPEARS, Justice.

This is an action for damages suffered in an automobile collision involving two cars and a pile of dirt and debris left in the roadway. The suit was brought by plaintiffs Mike Muller, Mattie Rowden, and John Seyen against Cypress Creek Utility Service Company ("Cypress"), John Carroll, and Cecil Carroll. The question before this court is whether Cypress may elect to apply the "one satisfaction rule" enunciated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935), in a comparative negligence suit in which the jury apportioned a percentage of negligence to the settling tortfeasor. The trial court rendered judgment for plaintiffs, allowing no Bradshaw credit. The court of appeals held that the Comparative Negligence Statute, article 2212a ¹ Sec. 2(e) abrogates the Bradshaw rule and affirmed. 624 S.W.2d 824 (Tex.App.). We affirm the judgment of the court of appeals.

On November 10, 1976, John Carroll was driving northbound on a two-lane country road in north Harris County. The car which Carroll was driving was owned by Cecil Carroll. Mike Muller and John Seyen were passengers in the Carroll vehicle. The Carroll vehicle struck a pile of dirt left in the roadway by Cypress. John Carroll lost control of the automobile, swerved into the southbound lane, and collided with an automobile driven by Mattie Rowden in which William A. Rowden, a minor, was a passenger.

Muller and Seyen jointly filed suit on May 6, 1977 against Cypress and John Carroll seeking recovery for the injuries they sustained in the collision between the Rowden and Carroll vehicles. On September 21, 1977, Mattie Rowden, acting individually and as next friend of William Rowden, filed suit against Cypress for negligence in leaving the dirt in the roadway, against John Carroll for negligent driving, and against Cecil Carroll for negligent entrustment. The Muller and Seyen suit and the Rowden suit were consolidated by order of the court.

The Carrolls filed cross-actions against Cypress seeking affirmative relief for personal injury and property damage. The Carrolls did not seek contribution from Cypress. The Carrolls did seek contribution from Mrs. Rowden, but did not seek affirmative relief. Cypress sought contribution from Mrs. Rowden but not from the Carrolls.

The Carrolls settled with Mrs. Rowden and William Rowden prior to trial. The Rowdens received $25,000 from the Carrolls. The trial court apportioned the settlement $20,000 to Mrs. Rowden and $5,000 to William.

The Rowden claim against Cypress and the Muller and Seyen claims against Cypress and John Carroll proceeded to trial before a jury. Before submission of special issues, Cypress purported to elect to take a dollar for dollar credit for the amount received by Mattie Rowden in settlement with the Carrolls to be applied to any judgment rendered against Cypress. The jury answered the special issues, finding Cypress and John Carroll were negligent and their negligence proximately caused the accident. The jury apportioned the negligence 80% to Cypress and 20% to John Carroll. No issues were submitted inquiring as to the negligence of Mrs. Rowden because the trial court granted her an instructed verdict.

Seyen came to an agreement with Carroll during jury deliberations and received $7,500 in settlement of his claim.

The jury awarded $730,000 in damages to Muller, $9,556.97 to Mrs. Rowden, and $1,500 to Seyen. The trial court rendered judgment against John Carroll and Cypress jointly and severally for all of the damages sustained by Muller. The trial court refused to allow Cypress a dollar for dollar credit for the settlements between Mattie Rowden, Seyen and Carroll. The negligence of the settling defendant, Carroll, had been submitted to the jury and a percentage of negligence had been determined. The court reduced the judgment against Cypress in favor of Mrs. Rowden and Seyen by 20%, the amount of negligence found to be attributable to Carroll. Thus, the trial court rendered judgment that Cypress pay Mrs. Rowden a total of $7,245.57. ² Cypress was also ordered to pay Seyen $1,200.

The court of appeals affirmed the judgment of the trial court. The court of appeals held that article 2212a Sec. 2(e) requires that a proportional credit rather than a dollar for dollar credit for the amount of a settlement be applied whenever the amount of negligence attributable to a settling tortfeasor is determined by the jury.

At common law, a party who had acted in concert with another to perpetrate a tort was not allowed contribution from his co-tortfeasor. Merryweather v. Nixan, 101 Eng.Rep. 1337 (1799); see Prosser, Law of Torts 307 (4th ed. 1971). The law did not favor wrongdoers and did not welcome suits to apportion the profits and losses derived from their wrongs. Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941); Robertson v. Trammell, 37 Tex.Civ.App. 53, 83 S.W. 258 (1904) writ ref'd 98 Tex. 364, 83 S.W. 1098; see Hodges, Contribution and Indemnity Among Tortfeasors, 26 Tex.L.R. 150 (1947). ³ Several decisions by the court of civil appeals did, however, provide some relief to a joint tortfeasor in the form of a credit where the plaintiff had entered into a partial settlement. See St. Louis I.M. & S. Ry. v. Bass, 140 S.W. 860 (Tex.Civ.App.1911, writ ref'd); El Paso & S.R. Co. v. Darr, 93 S.W. 166 (Tex.Civ.App.1906, writ ref'd); Robertson v. Trammell, supra. It was held that when the plaintiff settled with one tortfeasor but manifested an intent not to release his entire cause of action against all tortfeasors, the plaintiff could pursue his action against the non-settling wrongdoer, but the amount of the settlement was deducted from the judgment against the remaining defendants. ⁴ St. Louis I.M. & S. Ry. v. Bass, supra. This credit resulted from the principle that a plaintiff was entitled to recover but one satisfaction of his damages as found by the jury. Robertson v. Trammell, supra at 265.

In 1917, the legislature expressly abrogated the common law rule of no contribution by enacting article 2212 which allows a tortfeasor to bring suit for contribution against his co-tortfeasor to apportion the damages he was forced to pay his victim. Article 2212 provides:

Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, ... shall upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment.

The statute expressly provides for a division of damages among "defendants." However, article 2212 is completely silent as to the right of contribution against a settling tortfeasor who is not a "defendant" and against whom no judgment for the plaintiff may be rendered.

When one or more joint tortfeasors settled with the plaintiff, it was not clear under the statute that the remaining defendant could recoup any excess he paid over and above his share of the damages. The remedy for this situation was embodied in the decision of Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935). In that case, Bradshaw sustained personal injuries when the bus in which he was a passenger and which was owned and operated by Baylor University collided with a train. Bradshaw settled with the railroad and assigned it his cause of action against Baylor. The railroad then brought suit in Bradshaw's name against Baylor University. The jury returned a verdict against Baylor for an amount equal to the amount which Bradshaw had received in settlement from the railroad. The Commission of Appeals, in an opinion adopted by this court, held that Baylor was allowed a credit for the dollar amount of Bradshaw's settlement with the railroad under the theory that the plaintiff was entitled to only "one satisfaction" of the damages found by the jury. This court adopted the credit applied before article 2212 was enacted and substituted the credit for the payment in contribution that could have been obtained if judgment had been rendered against both parties.

Problems surfaced with the Bradshaw approach when a plaintiff would enter into a settlement with one of the defendants and then would use that defendant's help to secure a large judgment against the remaining defendant. This court faced that situation in Palestine Contractors v. Perkins, 386 S.W.2d 764 (Tex.1964). In that case, Mrs. Perkins was injured because of the negligence of Herman Conoway, the driver of a truck owned by Palestine Contractors. Mrs. Perkins settled with Conoway for a nominal sum and sought recovery against Palestine Contractors. The jury found Conoway at fault, and Palestine Contractors was held vicariously liable. We held that the settlement with Conoway released one-half of Mrs. Perkins' claim against Palestine Contractors even though Mrs. Perkins had received less in total damages than the amount found by the jury at trial.

Thus two methods of dealing with contribution rights against a settling tortfeasor existed side by side in our jurisprudence. The practice in the courts of this state, though never expressly sanctioned by this court, was to allow a defendant to proceed to trial seeking a Palestine Contractors proportionate reduction, but to allow him to elect a Bradshaw credit if payment of the defendant's proportionate share would result in the plaintiff receiving more in damages and settlement than the...