General Motors Corp. v. Grizzle, 10-81-208-CV

• Decision Date: 18 November 1982
• Docket Number: No. 10-81-208-CV,10-81-208-CV
• Parties: GENERAL MOTORS CORPORATION, Appellant, v. Mrs. Jay GRIZZLE, et al., Appellees.
• Court: Texas Court of Appeals

Page 837

642 S.W.2d 837

GENERAL MOTORS CORPORATION, Appellant, v. Mrs. Jay GRIZZLE, et al., Appellees.

No. 10-81-208-CV.

Court of Appeals of Texas,

Waco.

Nov. 18, 1982.

Rehearing Denied Dec. 9, 1982.

Royal H. Brin, Jr., R. Chris Harvey, Strasburger & Price, Dallas, for appellant.

Roger Knight, Jr., Roger Knight, Jr., Inc., Madisonville, Page Keeton and Steve McConnico, Scott, Douglass & Keeton, Austin, Fred Davis, Davis, Stacy, Lohmeyer & Davis, Bryan, Henry P. Giessel and Alice Giessel, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellees.

OPINION

CHASE, Justice.

This case involves a collision between a pickup truck and a 1976 GMC model vacuum truck. The vacuum truck was purchased a little over a year before the accident by Chem-Jet. Inc., a corporation in the business of renting vacuum and frat tank trucks, used in the production of oil and gas. Those involved in the accident were Donald Ray May, acting within the scope of his employment as a truck driver for Chem-Jet. Inc., who survived the accident with a broken nose; Charles David Grizzle, the driver of the pickup truck, and his daughter, Charlene Davette Grizzle, who were both killed in the collision and his step-daughter, Jaina Jeanette Wakefield, who was severely injured. Charlene and Jaina were riding in the cab of the pickup truck as passengers.

The record reflects it was a wet day on February 3, 1979, when Charles Grizzle was driving his pickup truck east on U.S. Highway 10 in Madison County. At the intersection of U.S. Highway 10 and Kurten Lane, the pickup truck was approached by two vehicles, a small Toyota truck and the Chem-Jet truck.

Donald May dropped two gears and applied the brakes when he saw the front Toyota vehicle slow down and signal a left turn to Kurten Lane. May felt the rear brakes lock and saw the rear of the truck slide into the left on-coming lane. Even though May struggled at the steering wheel to straighten up the truck, he lost control and the truck continued to cross back over to the left lane. Finally, the rear-end of the truck landed in the far left-hand ditch and the cab, angled toward the left lane, stopped on the shoulder. Within seconds, Charles Grizzle, unable to avoid the truck, crashed head-on.

Three suits, two negligence causes of actions against Donald May and Chem-Jet, Inc. and one products liability suit against General Motors Corporation (GMC), were consolidated. The plaintiffs were Mrs. Jay Grizzle, mother of Charles Grizzle, with Jerry Grizzle, temporary administrator of Charles Grizzle's estate, Jane Patricia Grizzle, mother of Charlene Davette Grizzle, and Jaina Jeanette Wakefield.

Trial was to a jury which found that a design defect in the left rear brake assembly was a producing cause of the accident. It failed to find either Donald May negligent in driving or Chem-Jet, Inc. negligent in maintaining the GMC truck. The jury awarded Jane Patricia Grizzle $30,000.00 for the pecuniary loss resulting from the death of the minor daughter, Charlene; $20,000.00 for the loss of companionship and society resulting from the death of her daughter, and $40,000.00 for her own mental anguish which resulted from witnessing the injury of her daughter, Jaina Jeanette Wakefield. Mrs. Jay Grizzle was awarded $5,000.00 for the pecuniary loss resulting from the loss of her adult son and $50,000.00 for the loss of companionship and society of her son. Jaina Jeanette Wakefield was awarded $1,177,762.00 for her injuries which Appellant does not here appeal.

General Motors brings this appeal on twelve points of error.

Points of error 1 and 11 pertain to a "Mary Carter" agreement entered into, prior to trial, by Chem-Jet and May with Mrs. Jay Grizzle and Jerry Grizzle. The parties agreed that the co-defendants, would pay these plaintiffs $50,000.00 on the condition that they failed to recover at least $50,000.00 from General Motors.

Point of Error 1 concerns the disclosure of this agreement during the cross-examination of Donald May and T.O. Dunman, owner and president of Chem-Jet, Inc. Appellant asserts inquiries were necessary to elicit the co-defendants' financial interest and bias against GMC and to expose the non-adversary relationship between the plaintiffs and co-defendants. Appellant relies on General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977), where the Supreme Court held the exclusion of a Mary Carter agreement was reversible error. Commenting on the trial court's indiscretion in preventing General Motors from inquiring into any terms of the Mary Carter agreement, the Supreme Court concluded:

The financial interest of parties and witnesses in the success of a party is a proper subject of disclosure by direct evidence or cross examination. While the alignment of the adversaries was disclosed, the jury did not know the extent of Feld's interest or that it was a financial interest which depended upon the amount of the judgment for Simmons.

In Simmons, the gravamen of the decision is that the nature of the agreement was withheld from the jury. Although Simmons approves of cross-examining a party-witness to ascertain the witness' interest in the outcome of the suit, it does not crown cross-examination as the only viable trial tactic that can expose a Mary Carter agreement. The Supreme Court held the jury could be informed of the agreement by direct evidence as well as cross-examination.

In the instant case, the co-defendants chose to inform the jury by direct evidence. Chem-Jet introduced the "Mary Carter" agreement into evidence during the cross-examination of Mrs. Jay Grizzle, whom General Motors declined to cross-examine. However, during the subsequent testimonies of T.O. Dunman and Donald May, General Motors attempted to ascertain their understanding of the agreement on cross-examination. The trial court sustained the co-defendant's objection of immateriality since the Mary Carter agreement was already admitted into evidence.

General Motors was permitted to convey the co-defendants' financial interest in imputing all the fault of General Motors throughout the trial. At voir dire, GMC stated:

The agreement guarantees the plaintiffs $50,000.00. But if the plaintiffs get as much as that from GMC, Chem-Jet gets its money back. So I want you to keep that in mind, Chem-Jet has a direct financial interest in helping the plaintiffs.

General Motors dwelled on the agreement in its opening argument and re-emphasized the nature of the settlement in its closing argument and instructed the jury to carefully read the document.

The jury had in its hands the terms of the agreement that defined the nature of the agreement and the position of the parties. The agreement was, on its face, a complete, unambiguous contract, and parol evidence, in the absence of fraud, accident or mistake, is inadmissible. Armstreet v. Greer, 411 S.W.2d 403 (Tex.Civ.App.--Tyler 1967, writ ref'd n.r.e.). The trial court only prohibited Appellant from attempting to substitute the co-defendants' understanding of the agreement for the agreement itself. Considering the jury had direct evidence of the agreement and listened to appellant's interpretation of the agreement throughout the trial, we conclude the proffered testimony of the co-defendants' understanding of the agreement was properly refused. Point of Error 1 is overruled.

Point of Error 11 contends the $55,000.00 jury award to Mrs. Jay Grizzle should be set-off by the $50,000.00 guarantee that Chem-Jet and May agreed to pay pursuant to the terms of the Mary Carter agreement.

A non-settling defendant is entitled to a credit of the amount that is paid by a settling tort feasor in compensation for the plaintiff's claim of injury. Schering Corp. v. Giesecke, 589 S.W.2d 516 (Tex.Civ.App.--Eastland, 1979, no writ). The principle behind a credit allowance is the "one satisfaction rule"; a plaintiff is entitled to only one satisfaction for an injury. McMullen v. Coleman, 135 S.W.2d 776 (Tex.Civ.App.--Waco 1940, no writ). The rule serves no purpose if the essential premise, a payment of money, is not performed because there is no threat of a double recovery.

In the instant case, the record reveals no evidence of any payment made to the plaintiffs by the co-defendants. The agreement expressly reads that Chem-Jet and May's payment is contingent upon a judgment "that has become final" which confirms that General Motors will pay Mrs. Jay Grizzle and Charles Grizzle's estate less than $50,000.00. Then and only then will Chem-Jet and May pay the difference up to $50,000.00.

General Motors now asks the court for credit of a presently unascertainable amount. This credit would result in a deduction of Mrs. Jay Grizzle's single recovery. The one-satisfaction rule mandates a full satisfaction, not more and not less. Point of Error 11 is overruled.

Point of Error 2 contests General Motors' liability of the accident. In particular, GMC contends there was no evidence or insufficient evidence to support the judgment based upon the jury finding that a defective brake design was a producing cause of the accident.

In cases involving strict liability for defective design, liability is determined by the product's defective condition, considering the utility and risk of the product and the feasibility of safer alternatives. Boatland of Houston v. Bailey, 609 S.W.2d 743 (Tex.1980).

The evidence shows Chem-Jet purchased the 1976 GMC truck near the end of 1977 for the use of water transportation in the production of oil and gas. The GMC truck was equipped with an air brake system that operated by compressed air pushing against a piston and causing an S-Cam to rotate with a shaft adjuster; this rotation prompted the brake shoe to expand and reach the drum. The truck was also equipped with an anti-skid device which was to prevent the brakes from locking by releasing and reapplying air which consequently would reduce the brake force on the S-Cam.

May testified he lost control of the truck...