Southwestern Greyhound Lines v. Crown Coach Co., 13983.

• Decision Date: 30 December 1949
• Docket Number: No. 13983.,13983.
• Citation: 178 F.2d 628
• Parties: SOUTHWESTERN GREYHOUND LINES, Inc., v. CROWN COACH CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F.2d 628 (1949)

SOUTHWESTERN GREYHOUND LINES, Inc., v. CROWN COACH CO. et al.

No. 13983.

United States Court of Appeals Eighth Circuit.

December 30, 1949.

Arnold & Arnold, Texarkana, Ark., submitted brief on behalf of appellant.

Shaver, Stewart & Jones, Texarkana, Ark., submitted brief on behalf of appellees.

Before GARDNER, Chief Judge, and THOMAS and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

As stated by appellant, and acquiesced in by appellees, "The sole question in this case is whether or not the appellees, Crown Coach Company and its insurance carrier, Casualty Reciprocal Exchange, are entitled to contribution under Article 2212 of Vernon's Annotated Texas Statutes against the appellant Southwestern Greyhound Lines, Inc., by virtue of the payment of the judgment taken against Crown Coach Company by Mrs. Edna Whitaker, et vir., in a certain cause filed and prosecuted in the Circuit Court of Miller County, Arkansas, solely against Crown Coach Company as defendant." The parties will hereinafter be referred to as Crown Coach and Greyhound.

The trial court held that the statute governs the case, entered judgment against appellant in favor of appellees in an amount equal to one-half of the amount of the judgments of $3750 entered in the action in the Circuit Court of Arkansas, namely $1875, and Greyhound appeals.

Article 2212 of the Texas Civil Statute reads: "Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. If any of said persons co-defendant be insolvent, then recovery may be had in proportion as such defendant or defendants are not insolvent; and the right of recovery over against such insolvent defendant or defendants in judgment shall exist in favor of each defendant in judgment in proportion as he has been caused to pay by reason of such insolvency."

In applying this statute the Supreme Court of Texas in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776, affirmed on rehearing, Tex.Civ.App., 178 S.W.2d 544, said: "* * * the dominant purpose of Article 2212 was to create the right of contribution in the class of cases therein provided for, and that it was not intended thereby to limit the right of recovery to those cases in which the wrongdoer sought to be held liable for the contribution was a party to the main suit."

The evidentiary facts involved in the controversy are not in dispute. Also, both parties concede that the issues are governed by the law of Texas where the cause of action arose. The argument is directed to whether the common law of that state or Article 2212 of the statute, supra, controls.

Crown Coach and Greyhound are both foreign corporations engaged in owning and operating lines of motor busses carrying passengers for hire. Greyhound operates and maintains a bus terminal station in Texarkana, Texas, located in the north part of the annex to Hotel McCartney. The station consists of a waiting room with ticket office and rest rooms and a shed which extends from State Line Avenue on the east to Main Street on the west. The hotel company owns the station premises; Greyhound is its tenant and Crown Coach is a subtenant of Greyhound.

Crown Coach uses the facilities of the station, for the use of which in loading and unloading passengers and as compensation for handling the sales of tickets to passengers Greyhound charges Crown Coach a 10% commission on all ticket sales. Crown Coach has nothing to do with the operation, lighting or maintenance of the station and has no employees stationed there.

The shed, or driveway, north of the ticket office, has an entrance on State Line Avenue and another on Main Street. On the south side of the driveway is a raised ramp or walkway, about 3 or 4 inches high, for use of passengers entering and leaving busses, but there is no walkway on the north side.

Greyhound allocated to Crown Coach use of the lane along the north wall of the shed; and through custom and usage Crown Coach always used the north lane, and Greyhound used the south side of the driveway along the ramp or walkway.

On February 2, 1943, Mrs. Edna Whitaker came from Fort Smith, Arkansas, to Texarkana, Texas, as a passenger on a Crown Coach bus, having purchased a ticket for transportation from Tulsa, Oklahoma, to New Iberia, Louisiana. It was necessary for her to transfer at Texarkana from the Crown Coach line to a Tri-State Bus Company bus. The Tri-State bus station was located in Texarkana, Arkansas, across State Line Avenue from the east front of the Greyhound terminal station.

The Crown Coach bus on which Mrs. Whitaker came from Fort Smith arrived at the Greyhound terminal in Texarkana about 9:30 a. m. and was parked in the north lane as was customary. A Greyhound bus was due to arrive about the same time. It used the south lane, discharging its passengers on the elevated pathway along the south wall of the shed. On her arrival Mrs. Whitaker asked the Crown Coach driver how to get to the Tri-State station, and the driver told her to "go straight through the shed across the street * * * Go straight ahead and cross the street."

Mrs. Whitaker alighted safely from the bus and the driver handed down her overnight bag. After visiting a few minutes with a traveling companion she turned to make her exit from the shed. No one was in the shed at that time except Mrs. Whitaker and her traveling companion. The day was dark and rainy, and the driveway was in semi-darkness. While following the directions of the driver she fell over an obstruction, probably a piece of luggage, and was seriously injured. She did not see the object on the floor because it was dark, although she looked to see where she was walking.

For the injury so received Mrs. Whitaker and her husband sued Crown Coach in the state court of Arkansas and on June 19, 1944, recovered judgments aggregating $3,750. The judgments were affirmed by the Supreme Court of Arkansas in Crown Coach Co. v. Whitaker, 208 Ark. 535, 186 S.W.2d 940. The case was submitted to the jury upon two theories of negligence: first, that Crown Coach was negligent in failing to maintain proper lights in the bus station; and, second, that Crown Coach was negligent in parking the bus upon which Mrs. Whitaker was riding at an unusual stopping place which was unsafe on account of improper lighting. On the first theory the jury was instructed that the fact that Crown Coach had no control over the lights in the bus station was immaterial.

Prior to the trial in the state court Crown Coach notified Greyhound of the pendency of the suit and called upon it to defend the case on the theory that Mrs. Whitaker's claim was a "station liability claim", which Greyhound was obligated to defend, and Greyhound refused to do so. Upon denial of liability by Greyhound this suit was instituted by Crown Coach and its insurance carrier, Casualty Reciprocal Exchange, as subrogee, to recover judgment for indemnity or contribution. The case was tried to the court without a jury and the judgment from which this appeal was taken was rendered in favor of Crown Coach and its insurance carrier.

In the present case Crown Coach sought to recover on two theories: first, that it was entitled to be indemnified for the amount of the judgment against it in favor of Mrs. Whitaker on the theory that it was the duty of Greyhound to maintain the station in a safe condition for the use of Crown Coach and its passengers and that this duty was breached by Greyhound's failure to maintain proper lighting in the driveway; and, second, that the parties were in pari delicto in that they were joint tort feasors, both having failed in a duty to Mrs. Whitaker, and that Crown Coach was accordingly entitled to contribution under Article 2212 of the Texas statute, supra.

On March 11, 1949,¹ the court filed an opinion in the case in favor of Greyhound in which it was said: "The Texas rules with respect to a landlord's liability for injuries occurring in leased premises because of an unsafe condition existing therein, where there has been no covenant to repair or maintain the premises in a safe condition, is set forth in Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369; and here Greyhound stood in the position of a landlord and Crown in that of a tenant. In the cited case the Supreme Court of Texas said: `Where there is no agreement by the landlord to repair the...