Hunt v. Ziegler

• Decision Date: 25 March 1925
• Docket Number: (No. 7314.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 936
• Parties: HUNT v. ZIEGLER et al.
• Court: Texas Court of Appeals

Page 936

271 S.W. 936

HUNT v. ZIEGLER et al.

(No. 7314.)^*

Court of Civil Appeals of Texas. San Antonio.

March 25, 1925.

Rehearing Denied April 15, 1925.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by William Ziegler, and others against Jesse R. Hunt. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

See, also, 267 S. W. 332.

Birkhead, Lang & Beckmann, Barrett & Barrett, and Hitzfeld & Lynch, all of San Antonio, for appellant.

McCollum Burnett, Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellees.

SMITH, J.

Most of appellees' brief is taken up with objections to the consideration of the record on appeal, but these objections are deemed without sufficient merit to require discussion, except in one particular. It is recited in the caption of the transcript that the term of the court at which this cause was tried convened on April 7, 1924, and adjourned on May 31. The transcript itself shows appellant's motion for new trial was not presented or acted upon until June 27th, nearly a month subsequent to the recited date of adjournment. Of course a motion for new trial must be disposed of during the term of court at which the cause is tried; and as on the face of the record here the motion in this case was acted upon after adjournment of the term, the appeal cannot be considered, unless it is made to appear that the recitals in the caption are incorrect.

We judicially know that under the law the spring term of the Forty-Fifth district court began on April 7, 1924, and could have continued in session until the first Saturday in July, which in that year was the 5th day of that month. The transcript shows that the court heard and disposed of the motion for new trial on June 27, and that on that date appellant, "in open court," gave notice of appeal. So, we know that, although no other regular term had intervened, the court nevertheless was in session, and acted upon a motion for new trial of the case which was tried at the April term, and we might very well, but do not, presume that, in spite of the recitals in the caption of the transcript, the April term was still in session at the time the motion was acted on. However, it is not necessary to indulge that presumption here, for in a motion for certiorari appellant has brought up and now tenders a certificate of the trial judge, attested by his clerk, from which it appears that the term of the trial court was in session when appellant's motion for new trial was acted on, and did not adjourn until July 5. But now appellees, although not questioning the truth of the certificate or of the facts therein recited, object to its consideration, upon the sole ground that it was not brought up prior to submission of the cause. While counsel for appellant have been negligent in getting the record into this court in proper time and form, it is nevertheless clearly within the discretion of this court to consider the certificate; and where it has been conclusively, even though tardily, shown, and is not questioned by appellees, that the ground upon which the latter seek to have the record disregarded does not in fact exist, it would be inequitable for this court to invoke a pure technicality as a means of denying to a litigant his right of appeal. Accordingly, we have granted the motion for certiorari, adopted the certificate as a part of the record, and will consider the appeal on its merits.

On July 2, 1921, appellant Hunt and Ben H. Ziegler were riding in an automobile in the city of San Antonio, when their car and another collided, and Ziegler was killed in the accident. Both Ziegler and Hunt were employees of the Pittsburgh Plate Glass Company, a corporation, and at the time of the accident were on an errand in their employer's behalf. Hunt individually owned and was driving the automobile.

In August, 1922, Ziegler's widow, in her own behalf and as next friend of her two minor children, brought a suit in the Thirty-Seventh district court of Bexar county, against the Plate Glass Company alone for $60,000 damages alleged to have been occasioned to them by the death of the husband and father. It was alleged that the accident was caused by the negligent acts of Hunt in driving the car at an excessive rate of speed, failing to keep a lookout, and failing to sound a warning at a street intersection. Liability of the Plate Glass Company was predicated upon the allegation in the plaintiffs' petition that at the time of the accident "Hunt was in charge of and operating said automobile, the said Hunt then and there being an employee of the Plate Glass Company, acting within the scope of his employment." It was further alleged that:

"By reason of the premises, the plaintiff, Mrs. Agnes Ziegler, has been damaged in the sum of $30,000, and said two minor children namely, William Ziegler and B. H. Ziegler, Jr., have each sustained damages in the sum of fifteen thousand ($15,000) dollars, which sums the defendant is justly due and owing to plaintiffs, and for which amounts they sue and pray judgment against defendant. Wherefore, premises considered, plaintiffs pray that * * * they be awarded judgment against defendant for their said damages, with costs of court and general and special relief."

Subsequently, on August 16, 1922, the parties to that suit entered into an agreement, subject to the approval of the court, to settle and compromise "the cause of action herein sued on by plaintiffs" upon the basis of $11,250 to be paid the plaintiffs by the Plate Glass Company. This agreement was submitted to the court, who heard evidence thereon, and finding from that evidence that the settlement was "fair and just, and to the best interest of the minor plaintiffs," the court approved the settlement, apportioned the damages $9,250, to Mrs. Ziegler and $1,000 to each of the children, and rendered judgment accordingly. It was provided in the judgment that upon payment of the stipulated amounts the Plate Glass Company should "be and stand released and discharged from any further liability on this judgment or cause of action herein sued on by plaintiff." The full amount of the judgment and costs was promptly paid over to the plaintiffs by the Plate Glass Company, as provided in the judgment, which became final. On the same day Mrs. Ziegler executed a receipt and release to the company "from any and all liability growing out of the injury and death of" her husband. In neither the agreement to settle, judgment, nor release was there any stipulation that the amount agreed on was only partial satisfaction of the whole damages sustained by the plaintiffs, or that it was not full satisfaction of those damages; nor was there any reservation of the right or privilege of pursuing any other tort-feasor for additional damages.

Three months later, in November, 1922, Mrs. Ziegler, again for herself and her minor children, brought the instant suit in the Fifty-Seventh district court of Bexar county against Jesse R. Hunt, individually and alone, praying for damages in the sum of $60,000 and again alleging in the very language of the petition in the first suit that the accident was caused by the negligent acts of Hunt in driving the car at an excessive rate of speed, failing to keep a lookout, and failing to sound a warning at a street intersection. In their petition in the second suit the plaintiffs themselves set up the fact of the settlement of the first suit with the Plate Glass Company, alleging in explanation thereof that:

"They were damaged far in excess of said amount of compromise, and said compromise was made by plaintiffs only because of the doubt about the liability of the Pittsburgh Plate Glass Company for the negligent acts of Jesse R. Hunt, and said compromise and judgment was not made with, nor did it affect any one other than the Pittsburgh Plate Glass Company. By reason of these facts, the damages to the plaintiffs, as above set out, have only been satisfied and paid to the extent of $1,000 to William Ziegler, $1,000 to Ben H. Ziegler, Jr., and $9,250 to Mrs. Ziegler."

To this petition the defendant, Hunt, answered by pleading the settlement, judgment, and satisfaction thereof in the first suit; that the death of Ziegler gave rise to but one cause of action, which had been asserted and sustained against the Plate Glass Company, had been adjudicated and satisfied, and could not again be asserted. To this defense the plaintiffs below replied through a supplemental petition that the first suit was solely against the Plate Glass Company upon a different cause of action from that now asserted, "involving different facts and proof"; that "the Pittsburgh Plate Glass Company was only indirectly or secondarily liable, and not jointly liable, to plaintiffs, and defended said suit on the ground (among others) that the automobile in question belonged to Jesse R. Hunt, and that the Pittsburgh Plate Glass Company did not furnish said automobile or have anything to do with said Hunt's means of transportation or any control over the operation of said automobile, and that said Hunt was not acting as the agent of said Pittsburgh Plate Glass Company in operating said automobile, and that the Pittsburgh Plate Glass Company was not liable for that reason."

The cause was transferred by consent from the Fifty-Seventh to the Forty-Fifth district court, and there tried by jury, who found for the plaintiffs in the sum of $3,750, apportioned $1,000 to Mrs. Ziegler, $1,250 to one of the children, and $1,500 to the other, in response to this question:

"Question No. 14. What amount of money, if any, would, if paid now, reasonably compensate the plaintiffs for the pecuniary loss, if any, sustained by them, in excess of the sums heretofore paid by the Pittsburgh Plate Glass Company by reason of the death of Ben H. Ziegler?"

It is a universal rule that where there has been a judgment against one of two or more...