Heights Funeral Home v. McClain, 5090

• Decision Date: 15 March 1956
• Docket Number: No. 5090,5090
• Citation: 288 S.W.2d 839
• Court: Texas Court of Appeals
• Parties: HEIGHTS FUNERAL HOME, Appellant, v. Olivia McCLAIN and Husband, Alex McClain, Appellees.

Page 839

288 S.W.2d 839

HEIGHTS FUNERAL HOME, Appellant, v.Olivia McCLAIN and Husband, Alex McClain, Appellees.

No. 5090.

Court of Civil Appeals of Texas, Beaumont.

March 15, 1956.

Rehearing Denied March 28, 1956.

George Red & Pat N. Fahey, Houston, for appellant.

Chilton Bryan, Houston, for appellees.

ANDERSON, Justice.

The appellant, Heights Funeral Home, as plaintiff, sued appellees, Olivia McClain and her husband Alex McClain, who will also be referred to as defendants, to recover damages because of the impairment suffered by one of its ambulances when the ambulance was in collision with an automobile that was being driven by Mrs. McClain.The defendants filed a plea in abatement which is also in the nature of a plea in bar.The plea was sustained and plaintiff's suit was dismissed, with prejudice.An appeal from the order of dismissal was perfected from the 127th District Court of Harris County to the Court of Civil Appeals at Galveston, and the case was then transferred to this court by the Supreme Court.

The factual background of the case is essential to a proper understanding of the plea in abatement and the order of dismissal, and will be first supplied.

On or about January 5, 1952, at a street intersection in Houston, an ambulance belonging to Heights Funeral Home was in collision with an automobile that was owned by appellees and that was then being driven by Mrs. McClain.After the impact, the McClain automobile struck one Faye Buxton, a pedestrian who was standing on an adjacent sidewalk, seriously injuring her.A settlement was made between appellees and Faye Buxton and her husband, and the Buxtons entered into a covenant not to sue appellees.After this had been done, the Buxtons sued appellant Heights Funeral Home for damages because of Mrs. Buxton's injuries, alleging that the negligence of Heights Funeral Home was the proximate cause of the collision between the ambulance and automobile and of the resulting injuries to Mrs. Buxton.The suit was filed in the district court of Harris County, 61st Judicial District, and was numbered 402,939.In addition to answering in the suit in the usual manner, Heights Funeral Home, with leave of the court, filed a third party action against appellees, Olivia McClain and husband, alleging that Mrs. McClain had been negligent in various ways and that such negligence had been the sole cause, or, in the alternative, a proximate cause, of the collision and of Mrs. Buxton's injuries, and praying for recovery against the McClains of all sums recovered against it by the Buxtons, or, in the alternative, that the McClains Clains be required to contribute at least fifty per cent of any judgment recovered by the Buxtons.The suit was settled before trial and the following judgment was entered:

'No. C-402,939

Mrs. Faye Buxton, Et vir

Vs

Heights Funeral Home

In the District Court of Harris County, Texas

61st Judicial District

'Judgment

'On this 23 day of Dec. 1953, at a regular term of Court, came on to be heard the above styled and numbered cause, and came the plaintiffs, Leonard C. Buxton and Mrs. Faye Buxton, in person and by and through their duly authorized attorneys of record, and came the defendant and third partyplaintiff, Heights Funeral Home, by and through its duly authorized attorneys of record, and came the third party defendants, Olivia P. McClain and husband, Alex McClain, by and through their duly authorized attorneys of record, and all parties announced ready for trial.A trial by jury having been expressly waived by all parties, all matters of law and of fact were duly submitted to the Court, and it was thereupon announced to the Court that the parties hereto have settled and compromised all matters at issue between them growing out of the accident made the basis of this suit, under the terms of which agreement judgment should be entered herein in favor of the defendant, Heights Funeral Home, and against the plaintiffs, Leonard C. Buxton and Mrs. Faye Buxton, and under the terms of which agreement judgment should be entered herein in favor of the third party defendants, Olivia P. McClain and husband, Alex McClain, and against the third partyplaintiff, Heights Funeral Home, with court costs being taxed against the defendant and third partyplaintiff, Heights Funeral Home.And it appearing to the Court that since there are no further matters at issue between the parties to this suit, judgment should therefore be entered in favor of the defendant and against the plaintiff, and that judgment should be entered in favor of the third party defendants and against the third partyplaintiff, it is therefore

'Ordered, Adjudged and Decreed that judgment be and the same is hereby rendered in favor of the defendant, Heights Funeral Home, and that the plaintiffs, Leonard C. Buxton and Mrs. Faye Buxton take nothing by reason of their suit; and it is further

'Ordered, Adjudged and Decreed that judgment be and the same is hereby rendered in favor of the third party defendants, Olivia P. McClain and husband, Alex McClain, and that the third partyplaintiff, Heights Funeral Home, take nothing by reason of its third party action;

'Ordered, Adjudged and Decreed that all costs herein are taxed against the defendant, Heights Funeral Home, for which let execution issue, if the same are not seasonably paid.

'Entered this 23 day of Dec. 1953.

'/s/ Ben F. Wilson

'Judge'

The judgment was expressly approved, in writing, both as to substance and form, by the attorneys for all of the parties.

The present suit was filed after CauseNo. 402,939 had been settled and the foregoing judgment had been entered.

In their plea in abatement, appellees sought in varying ways to avail themselves of CauseNo. 402,939 and the judgment therein rendered.They pleaded the judgment as being res judicata of the present suit, as estopping appellant from prosecuting this action, and as a release of the cause of action now asserted by appellant.They also pleaded that, under Rule 97,Texas Rules of Civil Procedure, by failing in its third party action against them to sue for damages because of injury to the ambulance, appellant had waived and lost its right to do so.

The judgment of the trial court does not indicate the theory or theories on which the plea in abatement was sustained.The plea was merely sustained generally, and the suit was dismissed.

A consideration of the record as a whole leaves no doubt that the third-party action of Heights Funeral Home in CauseNo. 402,939 was brought under Rule 38(a), T.R.C.P., which reads as follows:

'(a) When defendant may bring in third party.A defendant, on notice to the plaintiff, may ask leave of the court of file a cross-action against a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against the defendant.If the leave is granted, and service is completed upon the cross-action, the person so served, hereinafter called the third-party defendant, shall make his defenses under the rules applicable to the defendant, and his counter-claims and cross-claims against the plaintiff, the defendant impleading him (hereinafter called the third-partyplaintiff) or any other party.The third-party defendant may assert any defenses which the third-partyplaintiff has to the plaintiff's claim.The third-party defendant is bound by the adjudication of the third-partyplaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to...