Robertson Tank Lines, Inc. v. Watson

• Decision Date: 01 March 1973
• Docket Number: No. 7419,7419
• Citation: 491 S.W.2d 706
• Court: Texas Court of Appeals
• Parties: ROBERTSON TANK LINES, INC., et al., Appellants, v. John H. WATSON et al., Appellees.

Page 706

491 S.W.2d 706

ROBERTSON TANK LINES, INC., et al., Appellants, v. John H. WATSON et al., Appellees.

No. 7419.

Court of Civil Appeals of Texas,

Beaumont.

March 1, 1973.

Motion for rehearing overruled March 22, 1973.

Russell McMains, Houston, for appellants.

Dale Friend, Marc A. Sheiness, Shirley Helm, Houston, for appellees.

STEPHENSON, Associate Justice.

Two suits for damages arising out of an automobile and truck collision were consolidated in the court below. Trial was by jury and judgment was rendered for plaintiffs upon the verdict. It will be necessary to use the parties' names in many instances for clarity .

The two suits arose out of an intersection collision between defendant's truck (driven by Clarence Watson) and an automobile driven by plaintiff, Ray Adams. The Adams vehicle then collided with the automobile driven by plaintiff, John Watson. Separate suits were filed against defendant, Robertson Tank Lines, Inc., and consolidated under motion filed by defendant. However, in the suit filed by plaintiff Watson, defendant's driver, Clarence Watson, was not made a party, although such driver was made a party defendant in the Adams suit.

The judgment entered by the trial court does not mention the defendant, Clarence Watson, until the last paragraph in which the name Clarence Watson is interlined to show that he objected, excepted and gave notice of appeal. Defendants filed a motion for judgment nunc pro tunc, asking the trial court to correct its judgment which omitted recovery of plaintiff Adams against defendant Clarence Watson. The trial court overruled defendant's motion and that action is made the basis of defendant's first point of error here that there is no final judgment in this case. This point is overruled.

The disposition of this point is controlled by the rule announced in North East Independent School District v. Aldridge, 400 S.W.2d 893, 897--898 (Tex.1966) as follows:

'Analysis of the decisions we have discussed is sufficient to lead us to the statement of a rule for determining, in most instances, whether judgments in which parties and issues made by the pleadings are not disposed of in express language are, nevertheless, final for appeal purposes. When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. A claim duly severed under Rule 41 is a 'case' within the meaning of the foregoing rule. The rule will be subject to the exception created by Davis v. McCray Refrigerator Sales Corporation (136 Tex. 296, 150 S.W.2d 377); but it will apply to separate claims of the plaintiff, cross-actions and counterclaims by defendants against the plaintiff, cross-actions by defendants against other defendants and cross-actions by defendants against third-party defendants.'

The exception mentioned (Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941)) has no application to the situation before us.

Applying the Aldridge rule to the present case, the judgment here is not intrinsically interlocutory in character and was rendered following a conventional trial on the merits in which there was no order for separate trial of issues. It is presumed that the trial court intended to and did dispose of all of the parties legally before it and of all issues made by the pleadings between such parties. Even though defendants argue that their point of error is based upon the trial court's refusal to grant their motion for judgment nunc pro tunc, this approach does not alter the basic question as to the finality of the judgment. The Aldridge case still controls this question. See also Daniel Lumber Co. v. Settlemire, 256 S.W.2d 922 (Tex.Civ.App., Beaumont, 1953, error ref. n.r.e.), a case in which the facts are very similar to the one before us. In that case, the defendant's truck driver had been made a party defendant but had not been specifically disposed of in the judgment. That court reasoned as follows: that the driver was not a necessary party to the suit; that both the employer and employee were liable for the whole amount of the judgment; that they were not adverse parties to each other and were represented by the same counsel; that no cross-action had been filed for indemnity or contribution; that the employer was not precluded from recovery of contribution later; and, in any event, no harm had been shown under Rule 434.

Defendants next complain that it was error for the trial court to admit testimony that defendants had made a compromise settlement with a witness of a claim arising out of the same collision. The record in this case shows that Larry Martin was the driver of still another automobile which was struck by the Adams vehicle in this collision. Defendant called Martin as a witness to testify as to the facts surrounding this accident. On cross examination, counsel for both plaintiffs were permitted to question Martin as to a compromise settlement agreement with Robertson Tank Lines, Inc. Counsel for defendants objected to such testimony but did not ask the court to limit the purpose for which the testimony was admitted, even though counsel for plaintiffs stated to the court, outside of the presence of the jury, that this evidence was admissible to show prejudice, bias or interest.

We have made a careful study of the cases cited to us by defendants supporting their position as to this point of error. None of these cases pass directly upon this matter. These cases are: American General Ins. Co. v. Fort Worth Transit Co., 201 S.W.2d 869 (Tex.Civ.App., Fort Worth, 1947, no writ); McGuire v. Commercial Union Insurance Co. of N.Y., 431 S.W.2d 347 (Tex.1968); Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex.Civ.App., Houston, 1959, error ref. n.r.e.), and Otwell v. Scott, 425 S.W.2d 9 (Tex.Civ.App., Texarkana, 1968, no writ). All of these cases support the proposition that evidence of a compromise settlement agreement is not admissible to show an admission of liability or against interest . None of these cases deals directly with the question as to admissibility of such evidence for impeachment purposes to show interest, prejudice or bias.

Defendant also argues that such evidence is inadmissible under Art . 3737f, Vernon's Ann.Civ.St., which reads as follows:

'In a lawsuit being tried before a jury for damages for personal injuries which resulted from an occurrence which is also the basis for a claim for property damage and/or payment of medical expense, no evidence is admissible which informs the jury that the property damage claim or medical expense has been paid or settled.'

That statute became effective June 10, 1969, and we have found only one case passing upon it since that time. Osborne v. English, 458 S.W.2d 209, 213 (Tex.Civ.App Houston (1st Dist), 1970, error ref. n.r.e.), is a case in which the trial court sustained the defendant's motion in limine to exclude testimony concerning the property settlement made by defendant's insurance carrier with plaintiff. Neither the statute nor the Osborne case have application to the case before us. If defendants in our case had made property settlements with either or both of the plaintiffs, then, clearly, evidence as to such property settlement would not have been admissible under Art. 3737f, V.A.C.S.

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