Leong v. Wright, 567

• Citation: 478 S.W.2d 839
• Decision Date: 29 March 1972
• Docket Number: No. 567,567
• Parties: Richard E. LEONG, Appellant, v. Curtis WRIGHT, a Minor by next friend Joe Paul Wright, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 839

478 S.W.2d 839

Richard E. LEONG, Appellant, v. Curtis WRIGHT, a Minor by next friend Joe Paul Wright, et al., Appellees.

No. 567.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

March 29, 1972.

Rehearing Denied April 19, 1972.

Frank B. Davis, Andrews, Kurth, Campbell & Jones, Thomas L. Schubert, Houston, for appellant.

James A. Moore, Don R. Riddle, John M. O'Quinn, Brown, Kronzer, Abraham, Watkins & Steely, William E. Matthews, Baker & Botts, Houston, for appellees.

BARRON, Justice.

The plaintiff below, Curtis Wright, by and through his father, Joe Paul Wright, as next friend, filed suit against Verna Ellis Harrell and husband, D. H. Harrell defendants, on April 14, 1966. Plaintiffs' original petition alleged that Curtis Wright, a minor child, was severely injured as a result of the negligence of Verna Ellis Harrell when she struck the boy with her 1963 Ford automobile on October 14, 1964. Damages were alleged generally, and the plaintiff prayed for a recovery of $175,000.00. Plaintiffs' first amended original petition added, with related allegations, Spring Branch Memorial Hospital and Dr. Richard W. Leong as defendants, prayer for a total of $475,000.00 was made, and such petition was filed August 22, 1966. Plaintiffs' second amended original petition, filed January 6, 1971, the trial pleadings, alleged actions for damages only against Dr. Leong and Spring Branch Memorial Hospital and dropped the Harrells as defendants.

On September 23, 1966, plaintiffs entered into an agreement with the Harrells, by which agreement plaintiffs covenanted not to sue the Harrells, make claim, or institute any action or proceeding, directly or indirectly, against them for any damages which may have resulted to plaintiffs from the incident made the basis of the suit. It was stipulated that such agreement was in all things subject to the approval and apportionment of the court by reason of the minority of the principal plaintiff. The Harrells agreed to pay plaintiffs a total sum of $8,500.00 in settlement of the claim against them. On the same day the plaintiffs and the Harrells went before the court and presented the agreement above. The court found, on the evidence presented and by agreement, that the Harrells had agreed to pay by way of compromise the sum of $8,500.00 without any admission of liability on their part by reason of the accident, and the court further found that plaintiffs specifically reserved their cause of action against Spring Branch Memorial Hospital and Dr . Richard Leong as provided by the agreement. Interlocutory judgment was entered approving the settlement agreement, and the $8,500.00 was apportioned and paid. Also, on the same day the same parties entered into another agreement releasing the judgment, again with a covenant not to sue the Harrells and agreeing to indemnify and hold harmless the Harrells from any liability growing out of the incident. Again the causes of action against the hospital and Dr. Leong were reserved to plaintiffs, and again the Harrells denied liability and stated that the settlement was made in compromise to avoid trouble and further expense of litigation.

Trial began on March 15, 1971. On or about March 25, 1971, while the attorneys were discussing the preparation of the trial court's charge to the jury, counsel for plaintiffs took a non-suit against the hospital. Such non-suit was accepted and allowed by the court, and the case proceeded only against Dr. Richard Leong. Plaintiffs and the hospital had entered into an agreement on March 24, 1971, by which the hospital agreed to pay $15,000.00, and in return plaintiffs would take the non-suit above referred to, reserve their claims against Dr. Richard Leong in full, agreed and covenanted not to sue the hospital as a result of the incidents involved, and agreed to indemnify and hold harmless the hospital and its employees against any action brought by Dr. Leong in the form of claims for contribution or indemnity due to any judgment or other liability of Dr. Leong in favor of the plaintiffs. The trial court heard and approved such agreement on March 25 and the formal papers were filed on May 3, 1971. Approval was required because of Curtis' minority and for apportionment of the settlement.

After it became known to the attorney for Dr. Leong that settlement had been made on March 25, 1971, with the hospital, Dr. Leong made motion for trial amendment to file a cross-action against Spring Branch Memorial Hospital to determine whether the hospital was a joint tortfeasor and to allege contribution as against the hospital. This also occurred on March 25, 1971. The motion was denied by the court. A renewal of the motion was filed on April 30 after the verdict was returned and was overruled on May 12, 1971. Dr Leong also moved during the preparation of the charge for a trial amendment to plead unavoidable accident. That motion was denied by the court. Dr. Leong also made motion, after verdict, for a reduction of the jury's award and entry of judgment against Spring Branch Memorial Hospital. The doctor claimed that by reason of all the facts and the settlements involved he was now entitled to a reduction of damages awarded against him by one-third (if there were three defendants in the case) or by one-half (if there were two defendants in the case at the time of the reduction). In the alternative, the doctor sought credit in the amount of any agreed judgment against the hospital ($15,000.00) upon any judgment rendered against him. The trial court did, in its final judgment, credit the judgment against Dr. Leong in the amount of the above $15,000.00, the reasons for which being more clearly defined below.

Judgment was rendered against Dr. Leong on May 12, 1971. The amount of the judgment was $149,150.00, but $15,000.00 was subtracted from that sum because of the payment to plaintiffs of $15,000.00 by the hospital. See Petco Corporation v. Plummer, 392 S .W.2d 163, 165 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.). The net amount of the recovery in favor of plaintiffs was $134,150.00. Motions for judgment non obstante veredicto and for new trial were filed and overruled by the court. Dr. Leong has appealed as against Curtis Wright, a minor, Richard P. Hogan, his attorney ad litem appointed by the court, and Joe Paul Wright as appellees. Spring Branch Memorial Hospital is also named as an appellee. The parties will hereafter be designated as appellant and appellees.

The jury found in answer to special issues submitted that the cast applied by appellant to Curtis Wright's leg became so tight as to impair circulation, that the appellant thereafter failed to use ordinary care to correct the impairment, and that such failure was a proximate cause of Any additional damage to Curtis Wright's foot and leg, over and above that which did exist as a result of the automobile accident of October 14, 1964; that appellant after signs of circulatory failure failed to remove the cast from around the boy's leg as promptly as would have been done by a reasonably prudent orthopedic surgeon, in the exercise of ordinary care, under the same or similar circumstances, and that such failure was a proximate cause of any additional damage (as italicized above); that when appellant examined the boy on October 14, 1964, he had vascular damage to the extent that life of the limb was in danger, that appellant failed to discover the above as would have been done by a reasonably prudent orthopedic surgeon in the exercise of ordinary care, under the same or similar circumstances, and that such was a proximate cause of any additional damage (as italicized above); and that the automobile accident was not the sole proximate cause of the loss of the boy's leg below the knee. The jury assessed damages at $134,000.00, to which was added under an alleged stipulation of the parties, the sum of $15,150.00 for future and necessary prosthetic devices, upon presentation of evidence to the court in the absence of the jury. Of course, as stated above, the hospital's $15,000.00 payment was credited. The damage issues provided that damages be excluded which existed by reason of the automobile accident of October 14, 1964. Thus, the trial court did not directly credit the $8,500.00 settlement with the Harrells by reason of the above special issues and instructions to exclude the incident and any resulting damages of October 14, 1964.

Appellant contends that the trial court erred in overruling his motion and renewed motion to amend and to cross-act for contribution against the hospital, or alternatively to reduce the amount of damages by an appropriate percentage; in failing to credit $8,500.00 and $15,000.00 against the verdict (the prior payments made to plaintiffs); in overruling appellant's motion for a take-nothing judgment as to Dr. Leong by reason of the prior judgment as to the Harrells having been satisfied, or that the amount of damages be reduced; in receiving testimony regarding certain prosthetic devices for the appellee and the value thereof, and in adding a certain portion thereof to the amount of recovery. It is further contended that the trial court erred in overruling appellant's requested trial amendment to plead unavoidable accident; in reading the entire deposition of Dr. Minyard to the jury and appellant's related motion for mistrial; and in failing to provide apportionment of the judgment among the plaintiff-appellees. Contention is also made that the evidence is insufficient or is so contrary to the great weight and preponderance of the evidence as to be clearly wrong as to special issues numbers 2, 4, 7 and 8.

The evidence shows that Curtis Wright, a child of approximately four years at the time of his injury on October 14, 1964, was struck by an automobile driven by Mrs. Verna Harrell near the 1300 block of Cheshire Street in Houston, Texas. The vehicle backed over the child, and as a result thereof Curtis sustained a broken...