Duke v. Brookshire Grocery Co.

• Decision Date: 11 July 1978
• Docket Number: No. 8575,8575
• Citation: 568 S.W.2d 470
• Parties: Absebeth DUKE, Appellant, v. BROOKSHIRE GROCERY COMPANY dba Brookshire Food Store, Appellee.
• Court: Texas Court of Appeals

Page 470

568 S.W.2d 470

Absebeth DUKE, Appellant, v. BROOKSHIRE GROCERY COMPANY dba Brookshire Food Store, Appellee.

No. 8575.

Court of Civil Appeals of Texas,Texarkana.

July 11, 1978.

Lynn S. Patton, Fisher & Patton, Longview, for appellant.

Frank O. McClendon, III, Hathaway & Jackson, Tyler, for appellee.

CORNELIUS, Chief Justice.

Ms. Absebeth Duke appeals from a summary judgment rendered against her in her suit for damages against Brookshire Grocery Company.

Ms. Duke was injured while shopping in Brookshire's store when she was struck by a push cart loaded with eggs being delivered to the store by Ben Gibson, an employee of Gregg Poultry & Egg Company. Subsequent to the injury, on the 26th of November, 1975, Ms. Duke settled her claim for damages against Gregg Poultry & Egg Company and Ben Gibson for the sum of $17,500.00, and she executed a release which provided in part as follows:

"RELEASE IN FULL OF

"FOR AND IN CONSIDERATION of the payment to Absebeth Duke of the sum of Seventeen thousand five hundred No/100 Dollars ($17,500.00), the receipt of which is hereby acknowledged, I/we, being over 21 years of age, do hereby release, acquit and forever discharge any and all claims against Gregg Poultry and Egg and driver Ben Gibson and all other agents, servants, and employees of Gregg Poultry and Egg, and any other persons, firms or corporations of and from any and all actions, causes of action, claims, demands, damages, costs, loss of service, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from an accident that occurred on or about the 17th day of June, 1975, at or near Longview, Texas.

"THE UNDERSIGNED UNDERSTANDS AND AGREES THAT THIS IS IN FULL SATISFACTION FOR ALL DAMAGES ARISING ON ACCOUNT OF THE ABOVE DESCRIBED ACCIDENT AND WILL RECEIVE NO FURTHER SUMS OF MONEY AND THAT THE UNDERSIGNED AGREES TO NOT ASSERT OR PROSECUTE ANY FURTHER CLAIMS OR LAWSUITS THEREFOR AGAINST ANYONE WHOMSOEVER, WHETHER OR NOT HEREIN OTHERWISE NAMED, DESCRIBED OR IDENTIFIED. ANY AND ALL CLAIMS AGAINST PARTIES NOT SPECIFICALLY RELEASED HEREIN, IF ANY, ARE HEREBY ASSIGNED IN FULL TO THE PARTIES HEREBY RELEASED.

Thereafter, on August 6, 1976, Duke filed suit against Brookshire seeking damages for the same injuries. Brookshire answered by general denial and, with leave of the court, filed a cross-action against Gregg Poultry and Gibson, alleging that Duke's injuries were caused solely by the negligence of Gibson. The cross-action sought full indemnity or, in the alternative, contribution from Gregg Poultry and Gibson should Brookshire be found liable to Duke. Gregg Poultry and Gibson answered the cross-action by general denial, and then filed a cross-action against Duke, contending that her action against Brookshire constituted a breach of the release agreement she executed in November of 1975. After some discovery was accomplished, Brookshire moved for summary judgment on the basis of the release, answers to certain interrogatories and affidavits. The motion was granted and a take-nothing judgment was rendered against Duke.

The district court's rendition of summary judgment denying Duke's claim for damages against Brookshire can only be sustained, under the record before us, if the instrument she executed precluded her maintenance of the suit against Brookshire, thus leaving no material issue of fact to be decided. Duke contends here that, as Texas no longer follows the unity of release rule, the instrument she executed, as a matter law, did not release Brookshire, but was effective to release only those tort feasors named therein, to-wit, Gregg Poultry and Gibson.

In McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), our supreme court decided that the unity of release rule would no longer be followed in Texas, and that releases thereafter executed would be effective to release only those parties named or otherwise specifically identified therein. The instrument involved here provided that it released " . . . any and all claims against Gregg Poultry and Egg and driver Ben Gibson and all other agents, servants, and employees of Gregg Poultry and Egg, and any other persons, firms or corporations . . . ." Brookshire is not named, and we hold that the phrase "and any other persons, firms or corporations" is only general identification at best, and does not fall within the term "otherwise specifically identified" as used in McMillen v. Klingensmith, supra. Consequently, the instrument was not effective to release Brookshire.

But the instrument goes further. It provides that, "Any and all claims against parties not specifically released herein, if any, are hereby assigned in full to the parties hereby released." It is the well settled rule in Texas that a cause of action for damages resulting from personal injuries may be sold or assigned, in whole or in part, ¹ as can any other cause of action except those where assignments thereof are expressly prohibited by statute. ² Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d...