McMullen v. Coleman

• Decision Date: 11 January 1940
• Docket Number: No. 2237.,2237.
• Citation: 135 S.W.2d 776
• Parties: McMULLEN et al. v. COLEMAN et ux.
• Court: Texas Court of Appeals

135 S.W.2d 776

McMULLEN et al. v. COLEMAN et ux.

No. 2237.

Court of Civil Appeals of Texas. Waco.

January 11, 1940.

Error from District Court, Madison County; Max M. Rogers, Judge.

Action by W. N. Coleman and wife against Morris McMullen and others for injuries resulting in the death of a minor daughter of the plaintiffs in a collision between an automobile and a truck, wherein Morris McMullen and Elton McMullen, partners doing business under the tradename of Mack's Motor Coaches, owners of a passenger bus, filed a cross-action against William M. Forrest, truck owner, for contribution. Judgment for plaintiffs against the bus owners, and they bring error.

Reversed, and cause remanded.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, M. E. Gates, of Huntsville, Bennett & Bennett, of Normangee, and Brownlee & Brownlee, of Madisonville, for plaintiffs in error.

Collins, Pate, Hatchell & Garrison, of Lufkin, and Joe E. Webb, of Madisonville, for defendants in error.

ALEXANDER, Justice.

W. N. Coleman and wife brought this suit against Morris McMullen and Elton McMullen, partners doing business under the trade-name of Mack's Motor Coaches, and William M. Forrest, to recover damages for injuries resulting in the death of Floradelle Coleman, a minor daughter of the plaintiffs. The facts were substantially these: The McMullens owned a motor passenger bus and Forrest owned a motor truck. While the passenger bus was traveling eastward on a public highway from Madisonville toward Crockett, the truck, which was following the passenger bus, attempted to pass the bus, and, in doing so, collided head-on with an automobile occupied by three fifteen year old girls, Floradelle Coleman, Rachel Janice Scott and Bettie Ash. As a result of the collision, the driver of the truck and all three girls were killed. The plaintiffs sued both defendants—that is, the owners of the passenger bus and the owner of the truck— as joint tort-feasors for damages for the death of their daughter, Floradelle. The owners of the passenger bus, in addition to denying liability, filed a cross-action against the owner of the truck and alleged that their negligence, if any, was passive, whereas the negligence of the driver of the truck was active, and consequently the owners of the bus sought contribution from the owners of the truck. There was a dispute in the evidence as to how the accident occurred. Some of the witnesses testified that the driver of the truck attempted to pass the bus without first ascertaining the approach of the vehicle occupied by the girls, while others testified that the driver of the passenger bus slowed the bus down or stopped it suddenly and without warning and that the driver of the truck was compelled to cross the center of the road to his left in order to avoid colliding with the bus. The jury found that the driver of the passenger bus was guilty of negligence which proximately caused the collision, and acquitted the driver of the truck of all charges of negligence, and acquitted the three girls of all charges of contributory negligence. The jury found that the sum of $5,500 would compensate plaintiffs for the damages which they had sustained by reason of the loss of their daughter. Based on the verdict, the court rendered judgment for plaintiffs for $5,500. The owners of the passenger bus have sued out this writ of error.

In addition to the allegations above referred to, including the plea for contribution by the owners of the passenger bus over against the owner of the truck, the owners of the passenger bus allege that the truck owner had settled with the plaintiffs by paying to them the sum of $1,000 in discharge of his liability and had thereby discharged both alleged joint tort-feasors. They further alleged that if the bus owners were not thereby wholly discharged, they were entitled to have the amount so received by the plaintiffs in said settlement applied as a credit on the plaintiffs' claim, thereby reducing the amount to be recovered by the plaintiffs proportionately. Upon the trial of the case the court refused to allow the plaintiffs in error, the bus owners, to introduce before the jury any evidence with reference to such settlement. The court, however, did hear the evidence with reference thereto, out of the presence of the jury. The evidence showed without dispute that Forrest, the owner of the truck, approached the plaintiffs for the purpose of settling his liability. After some negotiations the plaintiffs disclosed the matter to their attorneys, who informed them that they could not settle with one of the defendants without releasing the other. It was then...