Eastern States Petroleum Co. v. Texas & N. O. R. Co.

• Decision Date: 18 February 1938
• Docket Number: No. 1753.,1753.
• Citation: 114 S.W.2d 408
• Parties: EASTERN STATES PETROLEUM CO., Inc., v. TEXAS & N. O. R. CO. et al.
• Court: Texas Court of Appeals

114 S.W.2d 408

EASTERN STATES PETROLEUM CO., Inc., v. TEXAS & N. O. R. CO. et al.

No. 1753.

Court of Civil Appeals of Texas. Eastland.

February 18, 1938.

Rehearing Denied March 11, 1938.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Consolidated suits by Mrs. Lucile Hall against the Eastern States Petroleum Company, Incorporated, the Texas & New Orleans Railroad Company, and others for the death of plaintiff's husband, wherein the first-named defendant filed a cross-action against the codefendants and also Houston Belt & Terminal Railway Company for contribution of part of the judgment which first-named defendant paid to plaintiff. From a judgment first-named defendant appeals.

Affirmed.

Wood & Morrow, and Byles & Atkinson, all of Houston, for appellant.

Andrews, Kelley, Kurth & Campbell, of Houston, for appellees.

FUNDERBURK, Justice.

In consolidated suits by Mrs. Lucile Hall (suing in several capacities), the defendants Eastern States Petroleum Company, Inc., Port Terminal Railroad Association, Sugarland Railway Company, Texas & New Orleans Railroad Company, Missouri-Kansas & Texas Railroad Company of Texas, Gulf, Colorado & Santa Fé Railway Company, Burlington-Rock Island Railroad Company, Guy A. Thompson, trustee of Beaumont, Sour Lake & Western Railway Company, Guy A. Thompson, trustee of International-Great Northern Railroad Company, and Guy A. Thompson, trustee of St. Louis, Brownsville & Mexico Railway Company, were adjudged, jointly and severally, liable to plaintiff for damages for the death of her husband in the sum of $22,500. One defendant, Harris County Houston Ship Channel Navigation District, was impliedly adjudged not liable. The judgment was rendered in pursuance of an agreement of the parties. Contemporaneously with its rendition the judgment was paid in full, one half, or $11,250, by defendant Eastern States Petroleum Company, Inc., and the other half, or $11,250, by defendant Port Terminal Railroad Association.

Defendant Eastern States Petroleum Company, Inc., asserted a cross-action against its codefendants above named, and also Houston Belt & Terminal Railway Company. (The latter made no answer, is not shown to have been served with citation, and is not mentioned in the judgment. We therefore presume it was dismissed. Moody v. Smoot, 78 Tex. 119, 14 S.W. 285). By such cross-action Eastern States Petroleum Company, Inc., sought to recover "judgment over against each and every such codefendant herein for contribution of a sum equal to the proportion of all the defendants named in said judgment rendered to the whole amount of such judgment." In the alternative, and in the event of judgment being rendered against Eastern States Petroleum Company, Inc., and one or more codefendants, not all of which should be adjudged liable for contribution in such proportion, it was prayed that said plaintiff in cross-action have judgment over against its codefendants, jointly and/or severally, for a sum equal to one-half of the total amount of any judgment rendered against it.

There was a comprehensive formal agreement of the parties as to the material facts relating to the issues raised by said cross-action. Parts of said agreement deemed necessary to be stated in the present connection are: That the Port Terminal Railroad Association and Eastern States Petroleum Company, Inc., were each independently guilty of the negligence charged by each against the other; that such negligence was active negligence in like degree, and was a proximate cause of the injuries to plaintiff. It was agreed that Port Terminal Railroad Association existed as the result of certain contracts between its members who were: The Navigation and Canal Commissioners of Harris County Houston Ship Channel Navigation District; Texas & New Orleans Railroad Company; the Sugarland Railway Company; Gulf, Colorado & Santa Fé Railway Company; Burlington-Rock Island Railroad Company; Missouri-Kansas & Texas Railroad Company of Texas; Guy A. Thompson, trustee of the International Great Northern Railroad Company; Guy A. Thompson, trustee of Beaumont, Sour Lake & Western Railway Company; and Guy A. Thompson, trustee of St. Louis, Brownsville & Mexico Railway Company. It was agreed that the Navigation and Canal Commissioners of Harris County Houston Ship Channel Navigation District, by reason of being a government agency, were not liable, and were not to be regarded as a member of said Port Terminal Railroad Association. It was further agreed that "all of the agents, servants and employees of the Port Terminal Railroad Association at all times material hereto, including any agents, servants and employees that may have been involved in or material to the accident involved in this suit were at all times material hereto employees of said association, receiving their compensation from such association, and except in so far as they might necessarily be employees of the various members of the association by virtue of said contracts forming the same and the carrying out of said contracts they were not employees of any of said individual members of the association." It was also agreed in effect that each and all of the defendants in the cross-action, other than the Port Terminal Railroad Association (and excluding, of course, said Navigation District and Houston Belt & Terminal Railway Company, the latter presumably dismissed), were not guilty of any negligence, save and except as the negligence of said Port Terminal Railroad Association, its officers and employees, was, in legal effect, the negligence of each and all of said codefendants. It was the purpose of said agreement, as therein stated, "to leave for the determination of the court the sole question of law as to what amount, if any, the defendant Eastern States Petroleum Co. Inc., having paid one half of the judgment, is entitled to recover from any of the other defendants herein by virtue of the payment of one half of said judgment." Upon the agreed facts the trial court rendered its judgment to the effect that Eastern States Petroleum Company, Inc., upon its cross-action against its said codefendants, take nothing. From that judgment the Eastern States Petroleum Company, Inc., has prosecuted this appeal. Further statement will be made as necessary in connection with the questions discussed in this opinion.

Appellant urges eight propositions. Of them, propositions 3 to 8, inclusive, refer to, and are based upon, assignments of error, each of which alleges as the ground of error therein the refusal of the court to make and file a particular conclusion of law stated by the appellant in the written request therefor. We are of the opinion that there was no error in the action of the trial judge in refusing to adopt and file such requested conclusions of law. If there be any precedent for such a procedure, we are not aware of it. Neither logic nor utility would seem to us to commend it. However, for the reasons presently to be stated, we find it unnecessary definitely to determine such question of practice.

All the issues of fact having been settled by a formal written agreement, the court had the single duty of declaring the proper judgment to be rendered. Under the circumstances, we think, the judgment rendered may itself be regarded as the judge's conclusion of law. We would, therefore, be inclined to hold that appellant's first assignment of error, which simply alleges as the ground of error the action of the court in entering the judgment, would be sufficient to present the questions which appellant by its brief indicates the purpose and desire to present for the determination of this court.

At any rate, appellant's second assignment of error, which specifies, as the ground of error, the action of the court in concluding, as a matter of law, that appellant was not entitled to the contribution sought from its codefendants certainly, we think, properly presents for our review the only question to be presented by any of the assignments of error.

There seems to be no difference of opinion that appellant's right to contribution under the agreed facts, if any it has, exists only because of the provisions of R.S.1925, art. 2212. The relevant provisions of that statute read thus: "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, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, 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." This statute, we think, was unquestionably applicable as between appellant and Port Terminal Railroad Association, if it be assumed or determined that the latter was an entity sufficiently distinct from its members to possess the capacity to be sued and to be held to an independent liability. The plaintiff and appellant both assumed that it had such capacity, the former naming it a party defendant in the original suit, and the latter in its cross-action. According to the agreed facts there was no right of contribution or indemnity between these two defendants, unless such right was given by said statute. They were both, under the agreement, active wrongdoers in the same degree. With reference to said statute it was said in Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005, 1007, that: "Its evident purpose is to change the common-law rule as applied to joint tort-feasors who are equally guilty as between each other. In other words, under the above statute, where two persons are both actively guilty, or both passively guilty, of a tort which damages a third person, and the third person sues and recovers from them both, jointly and...