Duncan v. Cessna Aircraft Co., C-1343

CourtSupreme Court of Texas
Writing for the CourtSPEARS; POPE; POPE
Citation665 S.W.2d 414
PartiesCarolyn Parker DUNCAN, Individually and as Administratrix, Petitioner, v. CESSNA AIRCRAFT COMPANY, Respondent.
Docket NumberNo. C-1343,C-1343
Decision Date15 February 1984

Page 414

665 S.W.2d 414
Carolyn Parker DUNCAN, Individually and as Administratrix, Petitioner,
No. C-1343.
Supreme Court of Texas.
Feb. 15, 1984.
Rehearing Denied March 28, 1984.

Page 417

Edwards & Perry, Russell H. McMains, Corpus Christi, Pat Maloney, George LeGrand and Jack Pasqual, San Antonio, J. Hadley Edgar, Jr., Lubbock, for petitioner.

Graves, Dougherty, Heraon & Moody, John T. Anderson, Robert M. Roller and Robert J. Hearon, Jr., Austin, Rody, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, N.M., for respondent.

SPEARS, Justice.

The opinion and judgment of the court delivered on July 13, 1983 are withdrawn, and the following is substituted.

Carolyn Parker Duncan, individually and on behalf of her minor children, brought this wrongful death action against Cessna Aircraft Company ("Cessna") for damages suffered when an airplane crash killed her husband, James Parker. 1 The jury returned a verdict of $1,000,000 for Duncan, but the trial court rendered judgment non obstante veredicto for Cessna. The court of appeals reversed the trial court's judgment and remanded the cause for a partial new trial. 632 S.W.2d 375. We reverse the judgments of the court of appeals and the trial court and render judgment for Duncan on the jury verdict.

This case presents three questions. The first is whether Texas or New Mexico law controls the construction of a release executed by Duncan in favor of the owner of the airplane, Air Plains West, Inc. We hold that the release must be construed according to Texas law because Texas has the most significant relationship to this issue.

The second question is whether, under Texas law, the release discharged Cessna's liability to Duncan. We hold that Cessna was not discharged because it was not specifically identified in the release.

Page 418

The final question before us is whether Cessna, a strictly liable manufacturer, is entitled to contribution from Smithson's estate based on proof that his pilot negligence caused the fatal crash. We hold that in products liability cases tried after July 13, 1983, the date of our former opinion, a defendant may obtain a jury allocation of the plaintiff's damages according to the plaintiff's, defendants', and third parties' respective percentages of causation of those damages. We also hold, however, that Cessna did not preserve its claim for contribution against Smithson's estate.


Benjamin Smithson and James Parker died in the crash of a Cessna 150 airplane in New Mexico in 1976. At the time of the crash, Smithson was employed as an instructor pilot for Air Plains West, Inc., which owned the airplane, and was giving Parker flying lessons.

Parker's widow, Carolyn Duncan, individually and on behalf of her minor children, filed a wrongful death action in Federal District Court for the Northern District of Texas against Air Plains West and Smithson's estate. She alleged that their negligence proximately caused the crash and her husband's death. The suit was terminated when Duncan settled with Air Plains West for $90,000 and executed a release ("Duncan release") that stated, in pertinent part,

we [Duncan and her minor children] ... do hereby release, discharge and forever quitclaim Air Plains West, Inc., its agents, servants and employees, and the Estate of Benjamin A. Smithson, Jr., deceased, or any other corporations or persons whomsoever responsible therefor, whether named herein or not, from any and all claims of every kind and character whatsoever, and from any cause of action, claims, demands, costs, loss of services, compensation, medical, hospital and doctor expenses, funeral and burial expenses, and damages, both actual and exemplary, on account of the fatal injuries sustained by the said James E. Parker, which resulted in his death, as the result of an airplane crash occurring on or about October 19, 1976 .... (emphasis added).

Duncan and Mrs. Smithson subsequently instituted wrongful death actions against Cessna. 2 They alleged that design and manufacturing defects in the legs of the cockpit seats caused the legs to break during the crash, causing the deaths of their husbands.

Cessna responded with a counterclaim against Smithson's estate. The counterclaim asserted that Smithson's negligence had caused the crash and that Cessna was therefore entitled to contribution from his estate for any damages Duncan recovered from Cessna. Mrs. Smithson specially excepted to the counterclaim on the ground that her husband's estate was entitled to full indemnification from Cessna for damages caused by her husband's negligence, if any. The trial court sustained the special exception and struck Cessna's counterclaim from the lawsuit.

In addition, in its first amended original answer to Duncan's petition, Cessna claimed that its liability to the Duncan family was discharged by the Duncan release of Air Plains West. Cessna again alleged that Smithson's negligence caused the crash. Based on that allegation and Duncan's settlement agreement with Air Plains West and Mr. Smithson's estate, Cessna alternatively sought a one-half reduction of any damages Duncan recovered from Cessna. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964). Duncan's special exception to this allegation urged that the trial court's previous decision to strike Cessna's counterclaim precluded any pleading alleging Smithson's negligence.

Cessna then filed a second amended original answer. Like Cessna's first amended

Page 419

original answer, it included an allegation of Smithson's negligence and a claim for a Palestine Contractors reduction. Duncan did not specially except to Cessna's second amended original answer. Before the trial concluded, Cessna offered deposition evidence pertaining to Smithson's negligence in causing the crash. Although the court excluded the evidence, Cessna did not attempt to make this putative deposition a part of the record through a formal bill of exceptions. See TEX.R.CIV.P. 372.

The trial court did not rule on Duncan's special exceptions to Cessna's first amended original answer until after the jury returned its verdict. At that time, the trial court finally signed an order sustaining those special exceptions. The court then granted Cessna's motion for judgment non obstante veredicto on the ground that the release executed in favor of Air Plains West and Smithson's estate also discharged Cessna's liability.


Cessna argues that in determining the effect of the Duncan release on Cessna's liability, we should apply New Mexico law, not Texas law. Cessna further argues that the New Mexico courts would construe the Duncan release to bar Duncan's cause of action against Cessna for damages arising out of the plane crash.

Duncan, on the other hand, contends that this case presents no true conflicts problem. She argues that we do not need to decide which state's law applies because under either Texas or New Mexico law, the general language in her release did not discharge Cessna. In order to resolve the effect of the release, therefore, we must first determine whether there is a difference between the rules of Texas and New Mexico on this issue.

A. Effect of the Release Under Texas Law

In McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), this court abolished the common law "unity of release" rule, under which a release of one joint tortfeasor fully discharged all remaining tortfeasors. We held that a release fully discharges only those tortfeasors that it names or otherwise specifically identifies. Id. at 196.

In this case, the Duncan release purports to discharge "any other corporations or persons whomsoever responsible" for the death of James Parker. Cessna clearly falls within this general class of tortfeasors. The question, therefore, is whether the naming of a general class of tortfeasors constitutes specific identification of each member of the class.

The courts confronting this question after McMillen have reached contrary results. In Bell v. First National Bank, 597 S.W.2d 521 (Tex.Civ.App.--Dallas 1980, no writ), a car owner sued a bank for wrongful repossession after releasing the dealer who also participated in the repossession. The court held that the general reference in the release to "all other persons, firms, or corporations ... in any way connected with [the tortious event]" reflected a clear intent to specifically identify anyone incurring liability because of the repossession. Id. at 522. As a result, the release barred the suit against the bank.

In Lloyd v. Ray, 606 S.W.2d 545, 547 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.), however, the court held that a release of a malpractice claim against a physician and "all other persons, firms, and corporations" did not specifically identify, and therefore did not discharge, a second physician. Accord Duke v. Brookshire Grocery Co., 568 S.W.2d 470, 472 (Tex.Civ.App.--Texarkana 1978, no writ).

The court of appeals in this case held that the McMillen requirement of specific identification is not met unless the reference in the release is so particular that "a stranger could readily identify the released party." 632 S.W.2d at 381. We agree. Accordingly, we approve Lloyd and Duke and disapprove Bell. We hold that under Texas law, the mere naming of a general class of tortfeasors in a release does not discharge the liability of each

Page 420

member of that class. A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. In this case, the release does not name Cessna, nor does it provide some specific description of Cessna. Since the reference to "all corporations" does not supply the descriptive particularity necessary to specifically identify Cessna, the release does not bar Duncan's action if Texas...

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