Texas Crushed Stone Co. v. Weeks

• Decision Date: 05 May 1965
• Docket Number: No. 11297,11297
• Citation: 390 S.W.2d 846
• Parties: TEXAS CRUSHED STONE COMPANY et al., Appellants, v. Wyatt Jefferson WEEKS, Appellee.
• Court: Texas Court of Appeals

Page 846

390 S.W.2d 846

TEXAS CRUSHED STONE COMPANY et al., Appellants, v. Wyatt Jefferson WEEKS, Appellee.

No. 11297.

Court of Civil Appeals of Texas, Austin.

May 5, 1965.

Rehearing Denied June 2, 1965.

Fagan Dickson, Cofer, Cofer & Hearne, John D. Cofer, Austin, for appellants.

Byrd, Davis & Eisenberg, Tom H. Davis, Austin, Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Robert H. Roch, Houston, for appellee.

PHILLIPS, Justice.

Plaintiff Weeks sued Texas Crushed Stone Company and E. B. Snead, its president in 1958 for damages for personal injuries received by Weeks when an airplane piloted by Snead crashed after an attempted landing at a private landing stript at a stone quarry operated by Texas Crushed Stone Company at Fairland in Burnet County, Texas.

From a judgment for damages awarded Weeks on a jury verdict, the Stone Company and Snead have perfected an appeal to this Court.

We affirm the judgment of the trial court.

Appellants' first point of error is that there was an interlocutory judgment entered upon the jury trial of the separate issue as to settlement and agreement not to sue and such interlocutory judgment should have determined the case on the rendition of final judgment.

When this case went to trial, appellants, defendants below, plead as one of their defenses to Weeks' cause of action an alleged accord and satisfaction and/or release. Weeks then filed a motion for summary judgment which was overruled.

Thereafter Weeks filed a motion to sever the matter as to the alleged accord and satisfaction and/or release and to try that issue separately. See Rule 174(b), Texas Rules of Civil Procedure. The trial court granted this motion.

On a hearing of this separate issue, the jury found that after the crash in question Weeks and Snead entered into an agreement that Weeks would not assert any claim for damage against the Stone Company or Snead arising out of the above-mentioned crash and that the Stone Company would pay his hospital and doctor bills and advance him a sufficient allowance to cover the difference between his workmen's compensation, if any, he should be paid and his salary with his then employer. The jury among other issues not pertinent here found that Snead and the Company had not failed to make the agreed payments.

Judgment was entered in March of 1961 that a valid agreement existed in accordance with the abovementioned jury answers. No motion was ever filed by appellants requesting that Weeks' case be dismissed or that final judgment against Weeks be entered and no action was ever taken by the court dismissing Weeks' principal cause of action.

26 days after judgment, Weeks filed a motion for a new trial on the separate issue of agreement not to sue, which was overruled.

Weeks then gave notice of appeal to this Court, which appeal was dismissed.

In June of 1964, Weeks' principal cause of action came to trial, at which time appellants did not request the court to dismiss this cause of action. Thereafter, the case was tried resulting in a jury verdict favorable to Weeks.

By Motion in Limine filed at the June, 1964 trial, and the order of the court thereon, the defendants therein (appellants) were instructed not to refer to their plea in bar, based on the agreement not to sue, or the separate trial thereon, or the verdict and judgment rendered thereon.

At the close of Weeks' (plaintiff) testimony, appellants filed a trial amendment specifically pleading the interlocutory judgment on the separate issue. Then the appellants made a motion for an instructed verdict and renewed it at the close of testimony. These motions were overruled. Appellants then made a Motion Notwithstanding the Verdict and an Amended Motion for New Trial.

Weeks had also filed a Motion for Judgment, which requested the court to disregard certain issues. In this motion Weeks re-urged his motion for summary judgment regarding the severed issues; re-urged his motion for instructed verdict regarding the severed issues; maintained that there was no basis in law to support the entry of the interlocutory order based on accord and satisfaction and/or settlement, for the reason that no evidence was introduced showing any binding agreement was ever reached between the parties hereto for a release and/or accord and satisfaction or an agreement to bind Weeks from suing appellants herein.

Weeks further sought the court to disregard the interlocutory order because: the findings of the jury on special issues Nos. 1 and 2 in the hearing on the severed issue, and the interlocutory judgment entered thereon, do not establish with sufficient definiteness and certainty an agreement upon which Weeks can or could enforce or obtain affirmative relief; that there was no evidence to support the answers made to special issues Nos. 1 and 2 at the hearing on the severed issues; that the findings of the jury on the special issues submitted in the severed hearing and the interlocutory judgment entered thereon do not establish either accord and satisfaction or release; that as a matter of law the appellants breached any agreement or understanding that could constitute an accord or release; that the trial court erred in the trial of the severed issues for not sustaining Weeks' objections to the charge on the severed issues; that the special issues submitted on the trial of the severed issues do not constitute a basis for judgment on behalf of the appellants, and taken as a whole they simply do not from any basis for any judgment that would be a bar to Weeks' tort cause of action; that the court should have granted Weeks' Motion for judgment non obstante veredicto after the jury answered the severed issues.

As stated above, the trial court entered judgment for Weeks and disregarded the answers to the prior special issues submitted in the trial on the severed issues. The court found in its judgment that said interlocutory judgment and special issues specified therein should be set aside and disregarded as presenting a basis for denying appellee (Weeks) relief.

The trial court had power to set aside the interlocutory order at any time prior to the finality of the judgment. Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39, 41 (1900); Wichita Falls & S.R. Company v. McDonald, 141 Tex. 555, 174 S.W.2d 951, 952 (1943); Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281, 286 (1958); Kuehn v. Kuehn, 242 S.W. 719, 720 (Tex.Com.App.1922). Nor does the prior interlocutory order have any limiting effect on the final judgment actually entered. In Texas Land & Loan Co. v. Winter, supra, perhaps the leading Texas case, the Supreme Court stated:

'* * * Notwithstanding the opinion previously expressed in the ruling on the exceptions, the court, when it came to finally dispose of the cause, had complete power to render such judgment as in its opinion the rights of the parties demanded; and, if such judgment was inconsistent with the order made upon the exceptions, the order must give way to the judgment, instead of limiting its effect. * * *'

Since the trial court had the power to set aside this interlocutory order, and no record is before this Court regarding the facts relating to the severed issues, all presumptions must be in favor of the judgment for appellee. Houston Fire & Casualty Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603 (1953); Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, 73 (El Paso, 1960) writ ref., n. r. e.; Kavanagh v. Holcombe, Tex.Civ.App., 312 S.W.2d 399, 402 (Houston, 1958,) writ ref., n. r. e.; compare Dennis v. Hulse, 362 S.W.2d 308, 310 (1962), Supreme Court.

Apart from the insufficiency of the record, none of the cases cited by appellant in its brief are applicable to our situation. The main case relied upon by appellant is Locke v. Atchison, Topeka & Santa Fe R. R. Co., (10th Circuit) 309 F.2d 811. In that case an issue regarding release was severed from the main cause of action and tried to a jury. The jury found in favor of the defendant on the release. The trial court then entered judgment for the defendant and dismissed plaintiff's cause of action. A final judgment was entered dismissing plaintiff's cause of action and the plaintiff appealed. This is entirely different from the present case, because no final judgment was ever entered on the severed issue nor one dismissing appellee's cause of action. The only final judgment entered was one in favor of appellee after the prior interlocutory order was set aside.

As stated by the Court in Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11 (1961), there can only be one final judgment in a cause. See Rule 301, T.R.C.P. In the instant case the only final judgment is the one now before the Court, and without a Statement of Facts this Court must presume the trial court had a valid basis for setting aside the prior interlocutory order.

In appellee's motion several grounds were set forth as a basis to disregard the interlocutory order, and it must be presumed that the court found that said grounds were sufficient to set aside the interlocutory order. Houston Fire & Casualty Ins. Co. v. Walker, supra.

We overrule this point.

Appellants' second point of error is that of the court in the manner of the submission of special issues 1, 3, 5, 7 and 15 because they are duplicitous and assume that the defendant (appellant Snead) committed the alleged negligent act.

We overrule this point.

We hold that these special issues are not multifarious or duplicitous, but are submitted in the standard form used for 'lookou...