Palestine Contractors, Inc. v. Perkins, 14284

• Decision Date: 13 February 1964
• Docket Number: No. 14284,14284
• Citation: 375 S.W.2d 751
• Parties: PALESTINE CONTRACTORS, INC., Appellant, v. Mrs. Lois PERKINS et al., Appellees.
• Court: Texas Court of Appeals

Page 751

375 S.W.2d 751

PALESTINE CONTRACTORS, INC., Appellant, v. Mrs. Lois PERKINS et al., Appellees.

No. 14284.

Court of Civil Appeals of Texas, Houston.

Feb. 13, 1964.

Rehearing Denied March 5, 1964.

B. R. Reeves, Palestine, and Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, attorneys, and Ralph M. Zeleskey, Lufkin, of counsel, for appellant.

Luther C. Johnston, Johnston & Johnston, Palestine, Shirley M. Helm, Helm, Jones & Pletcher, and Mabel Grey Howell, Houston, for appellees Mrs. Lois Perkins and another.

John B. McDonald, Palestine, for appellee Herman C. Conoway.

BELL, Chief Justice.

F. Perkins and his wife, Mrs. Lois Perkins, recovered judgment against appellant for $26,500.00 because of personal injuries received by Mrs. Perkins when a truck belonging to appellant collided with an automobile in which Mrs. Perkins was riding. The judgment gave appellant recovery over against Herman C. Conoway for $13,250.00, he having been brought into the suit on appellant's petition. The jury found Conoway guilty of one act of negligence which was a proximate cause of the collision between the truck of appellant and the automobile occupied by Mrs. Perkins.

We need notice the facts of the case only briefly.

On December 8, 1961, Mrs. Perkins was riding in an automobile in Palestine, Texas, that was proceeding in a southerly direction on West Palestine Avenue. This automobile was being driven on its proper side of the road. The truck of appellant was on the same street proceeding in a northerly direction. About 150 or 175 feet north of the intersection of Palestine Avenue with West Stearn Street the truck of appellant collided with the Perkins automobile on the automobile's proper side of the street. The automobile driven by Herman Conoway was, very shortly before the collision, proceeding in a westerly direction on West Stearn. He brought his automobile to a stop at a stop sign which was about two car lengths or more east of the intersection of West Stearn with West Palestine. There was also a flashing traffic control signal at the intersection of these two streets, the red part of the signal controlled traffic on West Stearn and the amber part of it controlled traffic proceeding on West Palestine. After stopping at the stop sign Conoway, without stopping at the intersection of the two streets in obedience to the flashing red signal, proceeded into the east lane of West Palestine and turned on the east lane and moved in a northerly direction. The streets were wet. The driver of the truck, when he saw the light on the rear of Conoway's car after the Conoway automobile had entered West Palestine, put on his brakes abruptly when he was about 150 feet south of the intersection. He was unable to stop his truck, lost control of it, went on Mrs. Perkins' side of the road, hit her automobile, and then hit the rear of Conoway's automobile.

The jury convicted appellant's driver of negligence in failing to keep his truck under proper control, in failing to keep a proper lookout, in operating the truck at an excessive rate of speed, and in failing to make proper application of brakes. Each act was found to be a proximate cause of the collision. It convicted Conoway of negligence in failing to stop, in obedience to the flashing red light, before entering West Palestine and found this was a proximate cause of the collision.

Sometime after the collision the Perkinses gave Conoway a covenant not to sue. The recited consideration was $10.00 but this was not actually paid. The covenant not to sue was just that and was not a release of the Perkins' cause of action. They expressly reserved their cause of action against appellant.

After the Perkinses sued appellant, appellant filed a third party action against Conoway asserting that Conoway's negligent acts were the sole proximate cause of the collision, or, alternatively, they were contributing causes and prayed for indemnity, or, alternatively, contribution from Conoway. Appellant contended the covenant not to sue given Conoway was in fact a release and therefore was a bar to any recovery against it, or, alternatively, it released Conoway so that only one-half of the damages suffered by Mrs. Perkins could be recovered against it.

Appellant makes no complaint of the jury findings of liability against it. Complaint is of the jury finding of $16,500.00 for medical expenses, past and in the future, the fact the court rendered judgment against it for the full amount of the judgment instead of only one-half thereof, and of certain procedures at trial.

Appellant complains that since the Perkinses under the covenant not to sue gave up their right to pursue their cause of action against Conoway they could recover only one-half of their damages against it. In the covenant not to sue the Perkinses merely agreed they would not directly or indirectly sue Conoway but expressly reserved their right to proceed against appellant on their cause of action. The covenant contained no agreement by the Perkinses to indemnify Conoway against any suit over by appellant.

Appellant's position is that the Perkinses, by asserting full damages against it, are indirectly suing Conoway because it is entitled to contribution from Conoway for one-half of the damages of judgment is rendered against it for the full amount of damages found. It relies on dictum contained in Gattegno v. The Parisian, 53 S.W.2d 1005 (Com.App.). The statement there made and here relied on is as follows: 'Therefore, if it be found that Gattegno and Muir are both active tortfeasors as between each other, the release having discharged Muir as to all liability to The Parisian, has at least discharged one-half its damages.' See also 'Contribution and Indemnity among Tort-feasors' by Professor Gus M. Hodges, 26 Texas Law Review 150.

No case has been cited us and in our independent search we have been unable to find a case that has applied the rule contended for by appellant. All cases cited and which we have found hold that a person injured by the acts of joint tort-feasors is entitled to full compensation for his injuries from any one of the joint tort-feasors. The liability of joint tortfeasors is joint and several. The injured party is not entitled to more than one satisfaction but he is entitled to full compensation for his injury. The effect of the cases is not to hold that the covenant not to sue discharges one-half the damages as stated in Gattegno v. The Parisian, supra, but rather that the injured party can assert its cause of action against the other joint tortfeasors and recover the full amount of her damages less whatever amount has been already received. The basis of the holding is that an injured party is entitled to full payment of her damages. She is entitled to receive but one satisfaction but she is entitled to full compensation. A covenant not to sue given to one joint tortfeasor that does not release the cause of action but reserve the right to prusue the cause of action against the other joint tortfeasors operates to the benefit, in the usual case, of the other joint tortfeasors because it assures them of a definite credit on the judgment that may be rendered against them. The policy of the law is to encourage settlements and thus avoid litigation. If it is held that an injured party by agreeing not to sue one of the joint tortfeasors thereby releases one-half of his damages, regardless of whether the amount received equals one-half of the damages, then you drive all parties to the courthouse because you discourage compromises and settlements. The covenant no to sue cannot affect the other tortfeasors' rights. They are still entitled to indemnity or contribution, depending on the facts of the particular case and they are entitled to credit on the judgment for the amount already paid. Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098 (S.Ct.); Eckel v. First Nat'l Bank of Fort Worth, 165 S.W.2d 776 (C.C.A.), writ ref.; Gillette Motor Transport Co. v. Whitfield, 186 S.W.2d 90 (C.C.A.), ref., w. m.; Friedman v. Martini Tile & Terrazzo Co., 298 S.W.2d 221 (C.C.A.), no writ hist.; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (S.Ct.); Lottman v. Cuilla, 288 S.W. 123 (Com.App.); El Paso & S. R. Co. v. Darr, 93 S.W. 166 (C.C.A.); Lone Star State Life Ins. Co. v. Foster, 250 S.W.2d 949 (C.C.A.), ref., n. r. e.

Appellant also relies on the case of Panhandle Gravel Co., Inc. v. Wilson, 248 S.W.2d 779 (C.C.A.), writ ref., n. r. e. That case differs from this case. There two joint tortfeasors and their insurer received a covenant not to sue but also received an express agreement of indemnity under the terms of which the injured party would pay...