State Dept. of Highways and Public Transp. v. City of Timpson, 12-89-00028-CV

• Decision Date: 31 July 1990
• Docket Number: No. 12-89-00028-CV,12-89-00028-CV
• Citation: 795 S.W.2d 24
• Court: Texas Court of Appeals
• Parties: STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. CITY OF TIMPSON, Appellee.

Page 24

795 S.W.2d 24

STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. CITY OF TIMPSON, Appellee.

No. 12-89-00028-CV.

Court of Appeals of Texas,

Tyler.

July 31, 1990.

Rehearing Overruled Sept. 14, 1990.

Mark Mann, Henderson, Grady Click, Patricia M. Charlton, Austin, for appellant.

John R. Smith, Center, for appellee.

BILL BASS, Justice.

This is a personal injury action before us for the second time. We affirm the judgment.

Pruitt was seriously injured when his motorcycle struck a pothole in State Highway 59 inside the city limits of Timpson. Pruitt sued both the State and the City. The State filed a cross-action for contribution against the City. During the first trial after Pruitt rested, the City settled with Pruitt for $10,000, and the trial court dismissed his action against the City. At the close of the State's evidence, the trial court directed a verdict for the City on the State's cross-action, and subsequently refused to submit the question of the City's negligence to the jury. The jury fixed Pruitt's damages at $172,000 and apportioned negligence 100% to the State.

On appeal, we concluded that the evidence raised the issue of the City's negligence, and that the trial court therefore erred in dismissing the State's cross-action against the City and in refusing to submit the question of the City's negligence to the jury. We set aside the jury finding that the State was 100% negligent, and remanded the cause to the trial court "for trial only of the issues of the comparative negligence of the State and the City."

On retrial the trial court realigned the parties naming the State as plaintiff and the City as defendant. The jury apportioned negligence 60% to the State and 40% to the City. The trial court reduced the $172,000 verdict rendered in the first trial by the City's percentage of negligence and rendered judgment for Pruitt for $103,200.

In its first point of error, the State contends that the trial court erred in allowing Pruitt to participate in the trial of the issue of the comparative negligence of the State and the City

[B]ecause Pruitt was not a party to the cross-claim for contribution, a separate and independent cause of action from the original cause in which Pruitt was plaintiff, and, consequently, had no justiciable interest in the subject matter of the trial and, therefore, no standing to participate in the trial.

The State stresses that after the remand and the realignment of the parties, Pruitt filed no pleading. It is the State's position that unless the plaintiff files some additional pleading to establish himself as a party in the trial of the cross-claim, he has no standing to participate in the trial.

At the time the case was first tried, the Civil Practice and Remedies Code required that contribution claims between named defendants be determined in the primary suit. It was also required that a settling tortfeasor be retained in the suit if its negligence was to be submitted to jury. Deal v. Madison, 576 S.W.2d 409 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.). This was the rule even though the settlement released the settling defendant from whatever portion of the final judgment might be attributable to it, and extinguished any right of contribution from it.

Although the State insists that its cross-claim was a separate and independent action for contribution, its cross-claim was neither separate nor independent. And strictly speaking, after the City's settlement with Pruitt, it was no longer even an action for contribution, but a plea that its liability, if any, be reduced by the percentage of negligence apportioned to the City by the jury. The cause was remanded because the State was deprived of its right to have the City's negligence determined by the jury and its own liability reduced proportionately. It was remanded on only the one issue of the comparative negligence of the State and City. The second trial on this issue was but a continuation of the original or primary proceeding.

The controlling purpose of a trial is to correctly and finally determine the disputed issues between the litigants. Southern Underwriters v. Kelly, 110 S.W.2d 153 (Tex.Civ.App.--Texarkana 1937, writ dism'd w.o.j.). It assumes the active participation of the parties who dispute the issue requiring trial. The outcome of a proceeding in which the presentation of the facts...