Pearce v. Hallum, 10637.

• Full Citation: Pearce v. Hallum, 30 S.W.2d 399 (Tex. App. 1930)
• Decision Date: 18 June 1930
• Citation: 30 S.W.2d 399
• Docket Number: No. 10637.,10637.
• Parties: PEARCE v. HALLUM et ux.
• Court: Texas Court of Appeals

30 S.W.2d 399

PEARCE v. HALLUM et ux.

No. 10637.

Court of Civil Appeals of Texas. Dallas.

June 18, 1930.

Rehearing Denied July 19, 1930.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by V. F. Hallum and wife against J. Eugene Pearce to recover damages on account of injuries causing the death of plaintiffs' son. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Touchstone, Wight, Gormley & Price and Robert Holland, all of Dallas, for appellant.

Alex Pope and H. B. Sanders, both of Dallas, for appellees.

LOONEY, J.

V. F. Hallum and wife sued J. Eugene Pearce to recover actual damages on account of injuries causing the death of their 6 year old son, Vasco F. Hallum, Jr. The facts that gave rise to the lawsuit are substantially these: During the forenoon of December 14, 1926, Mrs. Hallum carried her son to the home of defendant, on invitation of his wife, and left him there, while she and Mrs. Pearce went on a Christmas shopping tour in the business district of the city of Dallas. Defendant, being at home for lunch, planned an automobile ride for his mother, an inmate of his home, and directed his chauffeur where to drive. The auto party, consisting of defendant's mother, the little boy, the chauffeur, and a Mrs. McGarrah, the elder Mrs. Pearce's nurse, was traveling west on East Side avenue and at its intersection with Peak street the automobile collided with a fire truck being driven by L. G. Johnson, an employee of the city, at the time in line of duty, and both the automobile and truck were overturned, injuring and killing the little boy. The suit was brought under the death statute, based on the alleged negligence of defendant's chauffeur.

The court submitted the cause to a jury on special issues, and, as these were answered in favor of plaintiffs, judgment was rendered in their favor for $1,100.

Defendant pleaded in bar, among other defensive matters, that the city of Dallas was a joint tort-feasor, that on March 7, 1927, in consideration of $465.50, plaintiffs released the city from any and all liability for damages on account of the death of their son, and that, by reason of this release, defendant was also released, in that the settlement with the city inured to his benefit.

In a supplemental petition, plaintiffs denied that the city was in fact a joint tort-feasor, and asserted further that it was not their intention, in receiving the amount paid by the city, to release or discharge defendant from liability.

During the progress of the trial, and after making requisite proof as to its execution, defendant offered in evidence, in support of his plea in bar, the following document:

"The State of Texas, County of Dallas.

"Whereas, heretofore on or about the 14th day of December, 1926, V. F. Hallum, Jr., minor son of Mr. and Mrs. V. F. Hallum, of the City and County of Dallas, Texas, was fatally injured as the result of a collision between an automobile in which he was a passenger, and one of the City fire trucks; and

"Whereas, the City of Dallas is desirous of defraying the funeral expenses incurred by Mr. and Mrs. Hallum as a result of said accident; and

"Whereas, the said Mr. and Mrs. V. F. Hallum have agreed, in consideration of the same, fully to release the City of Dallas from any and all liability in connection with said accident,

"Now, therefore, know all men by these presents:

"That we, V. F. Hallum and wife, Mrs. V. F. Hallum, of the City and County of Dallas, State of Texas, for and in consideration of the payment to us of the sum of $465.50 cash, by the City of Dallas, a municipal corporation, receipt of which is hereby acknowledged and confessed, do hereby fully release and discharge, and save whole and harmless the said City of Dallas, a municipal corporation of the County of Dallas, State of Texas, from any and all liability to us and each of us for damages accruing as a result of the accident hereinabove referred to wherein our son, V. F. Hallum, Jr., was injured on or about the 14th day of December 1926, and in consideration of the foregoing, we and each of us do hereby fully release the City of Dallas from any and all liability to us, and each of us, for damages in connection with, or accruing from the said accident, whether said damages and injuries have fully developed at this time or not.

Witness our hands this the 9th day of March, A. D. 1927.

                            "[Signed]  V. F. Hallum
                            "[Signed]  Mrs. V. F. Hallum."
                

In this connection, defendant also offered in evidence a voucher dated March 7, 1927, issued by the city in the sum of $465.50, payable to plaintiff, V. F. Hallum, and receipted by him.

The admission of these documents was objected to by plaintiffs, and they were excluded by the court, as immaterial and irrelevant. Defendant excepted, assigned error, and urges the propositions that the injury occasioned plaintiffs by the death of their son was single and indivisible, that the damages resulting therefrom were not apportionable, and that the settlement made by plaintiff with the city, as shown by the instruments offered in evidence, inured to the benefit of and discharged defendant.

The general rule sustained by authorities is that, where the negligence of two or more produces liability for a single indivisible injury, damages recoverable therefor are not apportionable between the parties liable, and that, where settlement in full for said injury is made by the aggrieved party with one of the parties liable, the same inures to the benefit of all responsible for the injury, whether the party with whom the settlement was made could have been legally held liable in a suit or not. 1 Cooley on Torts (3d Ed.) pp. 235, 236; Hawber v. Raley, 92 Cal. 701, 268 P. 943; Cormier v. Worcester, etc., Co., 234 Mass. 193, 125 N. E. 549, 550; State v. Maryland, etc., Co., 126 Md. 300, 95 A. 43, 44, L. R. A. 1917A, 270; Carpenter v. McElwain Co., 78 N. H. 118, 97 A. 560; Hunt v. Ziegler (Tex. Civ. App.) 271 S. W. 936, 938.

The underlying reason for this doctrine was aptly stated by Judge Smith in Hunt v. Ziegler, supra, in the following language: "The rule is applied to joint tort-feasors because of the fundamental fact that there is but a single injury, in itself and of itself indivisible and constituting an indivisible cause of action, for which both in law and good conscience there can be but one satisfaction; and when that satisfaction is made by one of the joint tort-feasors, or by any person (Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129), it has the effect of releasing all others who may be jointly, or jointly and severally liable."

Plaintiffs do not question the correctness of this doctrine, but insist that the city was not in fact liable as a joint tort-feasor, or in any sense, and further that at...