Gammage v. Weinberg, 13894

• Citation: 355 S.W.2d 788,95 A.L.R.2d 1086
• Decision Date: 15 February 1962
• Docket Number: No. 13894,13894
• Parties: J. M. GAMMAGE, Appellant, v. Abe WEINBERG, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 788

355 S.W.2d 788

95 A.L.R.2d 1086

J. M. GAMMAGE, Appellant, v. Abe WEINBERG, Appellee.

No. 13894.

Court of Civil Appeals of Texas, Houston.

Feb. 15, 1962.

Rehearing Denied March 15, 1962.

Second Motion for Rehearing Denied April 5, 1962. Spril 5, 1962.

Joe D. Jarrard, Jr., Pasadena, for appellant.

C. B. Stanley, Houston, for appellee.

WERLEIN, Justice.

This is an appeal by J. M. Gammage from a judgment in favor of Abe Weinberg, in the sum of $11,110.00 as indemnity representing part of the amount paid by him on a final judgment recovered against both parties in solido in a suit brought by one Allstock in the United States District Court, Western District of Louisiana, for damages resulting from personal injuries sustained in a collision in the State of Louisiana.

It is appellant's contention that the findings of fact by the trial court in the instant case are repugnant to the issues of fact upon which the Louisiana judgment was based, and that the court erred in concluding (1) that appellee was not liable to the Louisiana tort claimant since the Louisiana judgment is against both appellant and appellee in solido, and (2) that the Louisiana judgment is not res judicata as to appellee's claim and does not estop appellee from claiming indemnity.

Appellee pleaded in substance that the plaintiff in the Louisiana case recovered a judgment for $18,900.00, said judgment being against American Employer's Insurance Company, Huey P. Tyler, J. M. Gammage and Abe Weinberg, in solido, in the sum of $5,000.00; against Huey P. Tyler, J. M. Gammage and Abe Weinberg in solido in the sum of $2780.00; and against Abe Weinberg and J. M. Gammage in solido in the sum of $11,120.00. He also alleged that 'Said final judgment of the Court was based upon the finding by the jury that said Huey P. Tyler [the truck driver], at the time of said collision, was acting as the servant and employee in the course of such employment for the said J. M. Gammage and the said Abe Weinberg.'

Appellee further pleaded that the judgment in the Louisiana case resulted from the acts of negligence of Tyler who was acting in the course and scope of his employment for Gammage and was not acting as the agent, servant or employee of Weinberg; that as a favor and accommodation to appellant, appellee had permitted appellant to transfer to appellee the record title to the truck-tractor, but in fact appellant was the owner and operator thereof, and appellee had no interest whatever therein; that $5,000.00 on the judgment had been paid by American Employer's Insurance Company, and that appellee in order to obtain a release from such judgment had paid $12,500.00, and appellant had paid $1,000.00 to obtain a release; that appellee was required to pay attorney's fees and costs in the Louisiana suit in the sum of $5,000.00; and that appellee was entitled to indemnity in the amounts paid by him, and, in the alternative, to contribution.

The trial court found that Tyler was the employee of appellant and not of appellee, and was not engaged in any mission or duties in behalf of appellee; that appellant was the owner of the truck and trailer although the certificate of title and registration indicated appellee was the owner thereof; that prior to the collision appellee had executed to appellant powers of attorney authorizing appellant to sign appellee's name to all title papers necessary to transfer said truck and trailer to appellant; that appellant had the pipe transported on said truck weighed on public scales and directed that the weight ticket indicate that the pipe was consigned or sold to appellee, but appellee had not authorized such action and had no knowledge thereof and had no interest in or ownership of the pipe being transported; that no cross-action or counter-claim or prayer for affirmative relief as between appellant and appellee was filed by any of the defendants in the Louisiana case, either for contribution or indemnity; that appellee paid $12,500.00 for a release of the judgment as against him, and that appellant paid plaintiff $1,000.00 to obtain his release; that as between appellant and appellee, appellee was not in any manner liable to Allstock or responsible for any negligence resulting in said collision.

The court concluded that liability adjudged against appellant and appellee in solido was the sole liability of appellant and that appellee was entitled to recovery in the sum of $11,110.00 indemnity, representing $12,500.00 paid by appellee, less one-half of the amount of $2,780.00 adjudged against appellant, appellee and Tyler in solido; that appellee was not entitled to recover any attorney's fees, although the court had found that appellee had paid his attorneys $6500.00 and such amount was reasonable and necessary in connection with the trial in Louisiana; that as between appellant and appellee there had been no adjudication of their rights and liabilities inter se made in the cause against them in the United States District Court of Louisiana, and that such judgment as between appellant and appellee was not res judicata as to the present cause of action and that appellee was not estopped by such Louisiana judgment to bring this suit and recover indemnity.

The question as to whether appellee is entitled to indemnity under the pleadings and the court's findings in the instant case must be determined under the law of the State of Louisiana since the right to contribution or indemnity is a substantive right governed by the law of the state where the collision and injury occur, and the right, if any, to contribution or indemnity arises as an incident to the tortious transaction and the relation thus brought about between the parties. Charnock v. Taylor, 1943, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Linkenhoger v. Owens, 5th Cir. 1950, 181 F.2d 97; 11 A.L.R.2d 236. The substantive law of Louisiana was applied by Texas courts in Grandstaff v. Mercer, Tex.Civ.Aplp., 214 S.W.2d 133, writ ref., n. r. e.; and in Jones v. Louisiana Western Ry. Co., Tex.Com.App.1922, 243 S.W. 976, in causes of action for personal injuries and death but not involving indemnity or contribution.

In his brief appellant concedes that a claim for contribution would not be barred by the Louisiana judgment. He also concedes that a claim for indemnity would not be barred if it were on some accepted basis such as a breach of duty by appellant to appellee causing the injury, or if the parties were not in pari delicto, or if the action had been brought by appellee as principal against appellant as an agent whose negligence caused the injury. He strenuously contends, however, that since the Louisiana judgment is against both appellant and appellee in solido, as employers of Tyler, it establishes that they are equally liable and neither is entitled to indemnity.

The pleadings and judgment in the Louisiana case are not included in the transcript and no statement of facts has been filed in this Court. The law is well settled that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court's findings and judgment. Commercial Credit Corporation v. Smith, 1945, 143 Tex. 612, 187 S.W.2d 363, and authorities cited.

We are of the opinion that appellee is entitled to recover indemnity from appellant, if, assuming the facts to be as found by the trial court as hereinabove recited, he would be entitled to indemnity under the laws of Louisiana, provided the judgment in the United States District Court of Louisiana is not res judicata as to appellee's claim and does not estop him from asserting it. The decisions of the courts in Louisiana indicate that indemnity may be recovered by a tort-feasor in certain cases under the laws of Louisiana, as for example when a tort-feasor has not been negligent or at fault and his liability is merely technical or constructive, whereas the liability of his codefendant in solido is based upon his wrongful or negligent acts or omissions. It has been held that when a non-negligent party has been made liable in solido with another for the negligent acts of the other because of some legal or contractual relationship with such other party, he may force the one primarily at fault to reimburse him for damages paid to a third person on account of the fault or negligence of the other. American Employers' Ins. Co. v. Gulf States Utilities Co., La.App.1941, 4 So.2d 628, and authorities cited; Sutton v. Champagne, 1917, 141 La. 469, 75 So. 209; Appalachian Corporation v. Brooklyn Cooperage Co., 1922, 151 La. 41, 91 So. 539; Succession of Caldwell, 1853, 8 La.Ann. 42; Fitzgerald v. Ferguson, 1856, 11 La.Ann. 396; South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378; 42 C.J.S. Indemnity Sec. 20, p. 597, Indemnity, Sec. 21; 27 Amer.Jur., p. 465, Sec. 16.

The right to recover indemnity is also recognized in Texas where one tort-feasor breaches a duty which he owes to another. Wheeler v. Glazer, 1941, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Austin Road Co. v. Pope, 1949, 147 Tex. 430, 216 S.W. 563; Humble Oil & Refining Co. v. Martin, 1949, 148 Tex. 175, 222 S.W.2d 995; Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, writ ref., n. r. e.; 42 C.J.S. Indemnity Sec. 20, p. 594.

Appellee pleaded that the Louisiana judgment was based upon the finding by the jury in the tort action that Tyler at the time of collision was acting as the servant and employee in the course of his employment for both appellant and appellee. We must accept this statement as a judicial admission by appellee. The trial court in the instant case found that Tyler was not the employee of appellee and was not acting for or in behalf of appellee, but the court did not find that the Louisiana judgment was not based upon the finding by the jury in the tort action that Tyler was the employee of appellee and was acting for him within the course of his employment. Hence we are confronted with the question...