Marange v. Marshall, 134

• Decision Date: 31 March 1966
• Docket Number: No. 134,134
• Citation: 402 S.W.2d 236
• Parties: John P. MARANGE and wife, Pauline Marange, Appellants, v. John MARSHALL, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 236

402 S.W.2d 236

John P. MARANGE and wife, Pauline Marange, Appellants, v. John MARSHALL, Appellee.

No. 134.

Court of Civil Appeals of Texas.

Corpus Christi.

March 31, 1966.

Rehearing Denied April 28, 1966.

Edwards & DeAnda by James DeAnda, Corpus Christi, for appellants.

Lewright, Dyer & Redford by J. M. Burnett, Corpus Christi, for appellee.

NYE, Justice.

This is an appeal from a judgment redered in the district court of Nueces County, which sustained a motion filed by defendant for summary judgment. Plaintiffs have perfected their appeal to this court.

The facts, stipulated to by the parties, show that in this case appellants, John P. Marange and wife, Pauline Marange, brought suit for damages against John Marshall for personal injuries sustained by Mrs. Marange, when a car in which she was riding with her husband, John P. Marange as driver, was in a collision with a pick-up truck driven by Marshall. Marshall was operating the pick-up truck in the usual course of his employment as an employee of Law Williams Chevrolet, Inc.

It appears that the present action was brought against Marshall only, with allegations of negligence of Marshall being duly set forth. The date of the collision was July 31, 1961, in Corpus Christi, Nueces County, Texas.

Prior to the filing of this suit, appellants, again as plaintiffs, had instituted a suit under the doctrine of respondeat superior against appellee's employer, Law Williams Chevrolet, Inc., based on the same accident. This first suit had gone to trial before a jury, and as a result of the verdict, judgment was rendered for the plaintiffs, appellants here, for the damages found. Plaintiffs appealed; however, the judgment was affirmed. Marange v. Lew Williams Chevrolet, Inc., 371 S.W.2d 900, Tex.Civ.App., 1963, ref. n .r.e. The full amount of the judgment was paid into the registry of the court and was also tendered in cash to them, but was refused by the appellants. This suit against the employer's servant followed.

The motion for summary judgment was predicated on the proposition that a final judgment in the appellants' favor in the prior suit against the appellee's employer based as was this suit on the negligence of appellee Marshall, and on the doctrine of respondeat superior and arising from the same transaction, was a complete defense to the present case.

In other words, appellee contended in the district court and in defense of this appeal that the prior action pursued by appellants to final judgment after a verdict, in the sum of $3,250.00 and affirmed on appeal, completely bars the second action against the employee, Marshall, appellee herein, notwithstanding the judgment amount and interest being both tendered to the appellants and paid into court, was not accepted by the appellants. We agree.

It appears by the admission of counsel for both parties that the precise question has not been decided by the Texas courts, and our own search of the authorities among the Texas decisions does not disclose a determination has ever been made in this jurisdiction. In fact, the briefs of diligent counsel disclose but few decided cases even from other courts than in Texas where the courts have been called upon to determine the issue presented here.

The single problem in this appeal seems to raise a number of questions, all related to its final disposition.

1) Does the prior case present a situation where the rule of res judicata must apply to bar the second or present action?

2) Is there an estoppel by the prior judgment that should dictate affirmance of the trial court's ruling on the motion for summary judgment?

3) Was there a binding election by the appellants as to parties defendant in the prior action, that precludes a later suit by the same plaintiffs wherein only the employee is named as party defendant?

4) Is there a public policy that forbids a second trial of the issues as to negligence of the employee Marhall, absent contributory negligence?

5) Do the rules relating to the cause of action against joint and several tort feasors apply in the relationships incident to the doctrine of respondeat superior?

6) Have the appellants had their day in court in the prior action?

Consideration of such questions seems to merge into a single question: Does the prior action pursued to judgment, with the full amount of the judgment tendered and paid into court although not accepted, bar the present action?

Here we have a case with facts undisputed that must be decided upon the well known doctrine of respondeat superior. In Texas, as in most states, appellants could have sued jointly in the prior case, both the master and the servant. The doctrine of respondeat superior presupposes that the employer is responsible for the acts of his employee, acting in the scope of his employment, where negligence of the employee is shown to have been the proximate cause of the occurrence. Judgment is allowed against the employer, not because of an overt negligent act of the employer because he committed no wrongful act, but because of a recognized legal fiction, '* * * Let the principal or master answer * * *' 'Let the superior respond * * *'. The principal is liable for the act of his servant or agent performed within the scope of his employment. It is derivative liability. The employer and employee composed one entity, for one wrongful act causing injury to one person, usually on one date in one episode.

'* * * where one acts through the agency of another, then, in legal contemplation, he is Himself acting so as to make him responsible for the acts of his agent.' Gatz v. Smith, 205 S.W.2d 616, 617, Tex.Civ.App.1947, ref.

The history of the development of the doctrine is too well known and recognized to justify citation. Students may refresh the history and the development of the doctrine in the writings of legal scholars, e.g., Oliver Wendell Holmes, Jr., late Justice of the Supreme Court of the United States. He said:

'A baker's man, while driving his master's cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted, and it is said that there ought to be a remedy against some one who can pay the damages, or that such wrongful acts as by ordinary human laws are likely to happen in the course of the service are imputable to the service.' The Common Law by Oliver Wendell Holmes, Jr., 49th Printing, 'Early Forms of Liability' page 6, permission granted by publisher.

Justice Holmes pointed out that certain customs, beliefs or needs of a primitive kind establish a rule or a formula. However, in the course of centuries the custom, belief or necessity disappears but the rule remains, although the reason which gave rise to the rule has been forgotten. Today the doctrine seems to have its origin in, and is dictated by,

'considerations of public policy and the necessity for holding a responsible person liable for the acts done by others in the prosecution of his business, and it is bottomed on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it, and also on the principle that a duty rests on every man, in the management of his own affairs, whether by himself or by his agents or servants, so to conduct them as not to injure another, and that, if he fails in that duty and another is thereby injured, he shall answer for the damage.' 77 C.J.S. Respondeat Superior, p. 318.

John P. Marange, the appellant herein, invoked the doctrine of respondeat superior in the first suit that permitted him to recover a judgment against appellee's employer Lew Williams Chevrolet, Inc., based upon the negligent conduct of the appellee herein.

Appellee contends the appellants are barred by the rule of res judicata. Judicial definition of the rule refreshes and sheds light on its application.

The general principle, announced in numerous cases, is that a right, question, or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense cannot be disputed in a subsequent suit between the same parties Or their privies, or with another so identified in interest with such person that he represents the same legal right, the same question, the same particular controversy or issue which has been necessarily tried and finally determined upon its merits by a court of competent jurisdiction in a judgment in personam in a former suit. United States v. California Bridge & Construction Co., 245 U.S. 337, 38 S.Ct. 91, 62 L.Ed. 332. See Edinburg Irr. Co. v. Ledbetter, 247 S.W . 335, Tex.Civ.App.1922, modified on other points, 286 S.W. 185, Tex .Comm.App.1926, quoting from Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355 (1897).

Speaking of the effect and meaning of the rule of res judicata the Supreme Court said, in Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930) reversing Tex.Civ.App., 285 S.W. 927:

'It is a finality as to the claim or demand in controversy, concluding parties and those in Privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * *' (Emphasis ours.)

In 38 Tex.Jur.2d § 240, page 491, it is stated:

'Every act of negligence and trespass committed by a servant while acting within the scope of his employment and in furtherance of the master's business is chargeable and imputed to the master...