Gillette Motor Transport Co. v. Whitfield

• Decision Date: 09 February 1945
• Docket Number: No. 14657.,14657.
• Citation: 186 S.W.2d 90
• Court: Texas Court of Appeals
• Parties: GILLETTE MOTOR TRANSPORT CO. v. WHITFIELD et al.

186 S.W.2d 90

GILLETTE MOTOR TRANSPORT CO. v. WHITFIELD et al.

No. 14657.

Court of Civil Appeals of Texas. Fort Worth.

February 9, 1945.

Rehearing Denied March 9, 1945.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by T. E. Whitfield against the Gillette Motor Transport Company for personal injuries sustained in a collision between defendant's truck and a freight train on which plaintiff was a brakeman, in which defendant impleaded and sought recovery over against the Wichita Falls & Southern Railroad Company and filed a cross-action against plaintiff and such company for damages to the truck and its cargo. From a judgment on a jury's verdict for plaintiff against defendant transport company, it appeals.

Reversed and remanded.

Hill & Paddock and Massingill & Belew, all of Fort Worth, for appellant.

Buck & Kemble, of Fort Worth, and Jones & Jones, of Marshall, for appellee T. E. Whitfield.

Bullington, Humphrey & Humphrey and Leslie Humphrey, all of Wichita Falls, and Conner & Conner and Earl Conner, Sr., all of Eastland, for appellee Wichita Falls & Southern R. Co.

McDONALD, Chief Justice.

On November 11, 1939, the appellee T. E. Whitfield suffered serious personal injuries in a collision between a truck and a freight train. The truck was owned by appellant Gillette Motor Transport Company, and operated by one of its employees. The train was owned and operated by Wichita Falls & Southern Railroad Company. Whitfield was a brakeman on the train. The manner in which the collision occurred will be described later in this opinion.

Whitfield first brought suit in a district court in Tarrant County, suing only the appellant, which will be referred to hereafter as the transport company. The transport company impleaded Wichita Falls & Southern Railway Company. Whitfield amended his pleadings, so as to seek a recovery against both of the companies named. At about the end of a trial in the district court proof was offered to show that the train was owned and operated, not by Wichita Falls & Southern Railway Company, but by a different corporation, Wichita Falls & Southern Railroad Company. The pleadings of the parties were amended, the latter named company being made a party to the suit. Whitfield recovered judgment for $20,202. On appeal to this court, the judgment of the trial court was reversed and the case was remanded for a new trial. Gillette Motor Transport Company v. Whitfield, Tex.Civ.App., 160 S.W.2d 290.

After the case was remanded, the trial court transferred Whitfield's cause of action against the railroad company to Eastland County on the plea of privilege of the latter. The cross action asserted by the transport company against the railroad company was also transferred to Eastland County, but the latter order of the trial court was reversed on appeal. Gillette Motor Transport Company v. Wichita Falls & Southern Railroad Company, Tex. Civ.App., 170 S.W.2d 629; Wichita Falls & Southern Railroad Company v. McDonald, Chief Justice, 141 Tex. 555, 174 S.W. 2d 951.

At the time of the last trial, which resulted in the present appeal, Whitfield had amended his pleadings so as to seek a recovery only against the transport company; the transport company sought a recovery over against the railroad company; and the transport company also sought by cross action to recover against Whitfield and the railroad company for the damages done to appellant's truck and the cargo it carried.

The verdict of the jury in the last trial convicted the truck driver of negligence, and absolved both Whitfield and the railroad company of negligence. Judgment was rendered on the verdict in favor of Whitfield against the transport company for $39,753. The transport company has appealed.

Appellant, the transport company, first contends that it was entitled to an instructed verdict, or a judgment non obstante veredicto, because of the following: On March 19, 1941, during the first trial of the case, Whitfield entered into a written agreement with the Wichita Falls & Southern Railway Company and the Wichita Falls & Southern Railroad Company (see our opinion in 160 S.W.2d 290 describing the relation of these two companies). In the opening paragraph of the agreement reference is made to the pendency of the suit, and it is recited that Whitfield and the two railroad companies named "have made this agreement in connection with such cause of action as the Plaintiff may have against either of said railroads arising out of said accident and collision aforesaid." For the recited consideration of $10 paid, and the sum of $100 per month to be paid by said railroad companies to Whitfield from November 1, 1940, to July 1, 1944, the accrued payments to be paid in a lump sum, Whitfield covenanted and agreed that regardless of the outcome of the suit pending he would not, nor should anyone for him or on his behalf, levy or issue execution or other process against said railroad companies in the event judgment should be rendered against them or either of them in said cause or in any other cause which Whitfield might file against them or either of them for damages arising out of the collision in question. For the same consideration Whitfield agreed to indemnify and hold harmless the said railroad companies to the extent of the amount of any judgment that might be rendered in favor of Whitfield against them, and, quoting from the agreement, "notwithstanding the fact that said cause may continue on trial to final judgment, the First Party agrees that he will never enforce said judgment, if any should be rendered, against Second Parties or either of them and never enforce collection of said judgment. * * *"

At the outset appellant contends that the agreement between Whitfield and the railroad companies operated to release appellant from liability, under the general rule that a release of one joint tort-feasor will release the other joint tort-feasors.

There is a distinction between a release and a covenant not to sue. By the great weight of authority, a covenant not to sue one joint tort-feasor, or an instrument that may be construed as such, does not amount to a release, and will not discharge the other joint tort-feasors. 45 Am. Jur., p. 676; 53 C.J., p. 1263; annotation in 124 A.L.R. 1309, and other annotations there cited; Restatement of the Law of Torts, Vol. IV, § 885, p. 460; Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098; 36 Tex.Jur., Release, § 4, p. 800, and cases there cited. After comparing the agreement found in the present case with those found in many other decided cases, we construe it as an agreement in the nature of a covenant not to sue, rather than as a release. The agreement recites that the case may continue on trial to final judgment, but it is only a judgment against the railroad companies that Whitfield covenants not to enforce. The instrument appears to us to be unambiguous, and despite appellant's argument to the contrary, we consider that its meaning was a question of law to be determined by the court, and that there was no issue as to its meaning which was required to be submitted to the jury.

Appellant next charges error in the fact that plaintiff's attorney testified from the witness stand that he had formerly sued both the transport company and the railroad company because he feared that if the railroad company was not in the suit the transport company would attempt to fix blame for the collision on the absent railroad company and that the railroad company not being there to defend itself, the jury might conclude that it was responsible rather than the transport company. Immediately after the testimony was offered, plaintiff sought to withdraw it with the request that the court instruct the jury not to consider it. The court granted the request and so instructed the jury. We do not find reversible error in this happening. If there was any error in the admission of the testimony the instruction of the court was sufficient to cure it.

As has been said, Whitfield first sued only the transport company. After Whitfield's suit against the railroad company was transferred to Eastland County, Whitfield amended, suing only the transport company. The transport company, by its Sixth Amended Answer and Cross Action, sought recovery over against the railroad company. In response to this pleading, Whitfield filed a supplemental answer denying the transport company's allegations of negligence on the part of the railroad company. The transport company then filed a motion asking the court to instruct Whitfield not to introduce any testimony inconsistent with his former pleadings which had charged that the railroad company was negligent. The Court overruled the motion.

Appellant contends that Whitfield, having once charged the railroad company with negligence and having collected a large sum of money in settlement of the claim asserted against the railroad company, is now estopped to take the position that the railroad company was not in fact negligent. The contention is based on the rule thus stated in 17 Tex.Jur., p. 134:

"Where a party to a judicial proceeding has once taken or assumed a particular position, he is estopped to adopt a position which is inconsistent therewith if to do so will result in prejudice to his adversary. He will not be permitted to `blow hot and cold' in his efforts to recover. Again, `the law estops a person to falsify a judicial act to which he is a party, and from which he has received a benefit.'"

Lengthy discussions of the rules relating to such question may be found in 19 Am. Jur., Estoppel, Sections 72 to 82; and in 31 C.J.S., Estoppel, §§ 117 to 120.

Whitfield's abandoned pleadings did not constitute judicial admissions, although they were admissible as admissions against interest, and might have been used to impeach him if he testified in a manner inconsistent with the allegations contained in the abandoned pleadings. 17 Tex.Jur., pp....