Westfall v. Lorenzo Gin Co.
| Decision Date | 17 February 1956 |
| Docket Number | No. 3228,3228 |
| Citation | 287 S.W.2d 551 |
| Parties | C. C. WESTFALL et al., Appelants, v. LORENZO GIN COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Oster & Kaufman, Dallas, Adkins & Condron, for appellants.
McMahon, Springer, Smart & Walter, Abilene, for appellee.
J. M. Henslee sued C. C. Westfall and Garland Wayne Cox for damages caused by a collision between a truck driven by Cox, who was an employee of Westfall, and a truck driven by Henslee. Henslee alleged the truck he was driving was owned by his employer, the Lorenzo Gin Company. He prayed for judgment against Westfall and Cox, jointly and severally. Westfall and Cox answered, among other things, that the collision was caused by the negligence of Henslee and they filed a cross claim against the Lorenzo Gin Company, which they alleged was the employer of Henslee. They alleged the gin company was guilty of negligence (1) in furnishing Henslee with a dilapidated truck, (2) in using an inexperienced and incompetent driver, (3) in failing to have the truck properly lighted and (4) in failing to equip the truck with proper flares. Wherefore, they prayed that if Henslee obtained judgment against them that they have judgment over against the gin company.
The gin company filed a motion for summary judgment and prayed that it be dismissed from the suit. It attached thereto a release by Westfall and Cox of the gin company and others from 'any and all claims, actions, causes of actions, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever' which Westfall and Cox might have as a result of the collision. It also attached the affidavit of Mr. Bray that at the time of the collision he was a partner in the Lorenzo Gin Company; that Henslee was then an employee of the gin company and that Westfall and Cox had released it from all claims arising out of said collision. The gin company filed an amended motion for judgment in which they alleged, among other things, said release and the effect thereof and, further, that at the time of the collision Henslee was an employee of the gin company acting in the course of his employment; that the gin company was a subscriber under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., and carried such insurance on Henslee; that, because of the protection afforded by compliance with said law, Henslee had no cause of action against the gin company for ordinary negligence and, likewise, Westfall and Cox had none, as a matter of law. The gin company alleged that the facts stated and supported by their affidavits, pleadings and exhibits were undisputed; that there was no real issue of fact and that, as a matter of law, the gin company was not liable for indemnity or contribution. It attached two affidavits to the effect that it carried workmen's compensation insurance on the gin company's employees; that at the time of the collision their compensation policy was in force and Henslee was then an employee of the gin company and his injuries were covered under the Workmen's Compensation Law and by said policy and that its insurer had paid Henslee $6,525 compensation and $1,805.05 for medical expenses.
Westfall and Cox filed a reply to the motion for summary judgment in which they alleged they had filed a second amended answer in which they sought contribution and indemnity from the gin company and referred to such a pleading. Said pleading is not in the record. They further alleged the gin company 'was guilty of one or more acts of gross negligence, which were the proximate cause of the injuries, if any, sustained by the plaintiff and which contribution and indemnity are prayed for in the event of a recovery by the plaintiff.' What the alleged acts of gross negligence were are not disclosed by the record. What facts are claimed to constitute gross negligence are not shown by pleading or otherwise. They then referred to the 'deposition' of Buford Bray, which is not in the record, together with their pleadings and affidavits. No deposition by Mr. Bray is in the record but his affidavit is attached to the gin company's motion and does not tend to support appellants' claims. Westfall and Cox alleged the 'deposition' of Mr. Bray 'would show' that the gin company 'purportedly leased the truck in question 'to get around get a railroad permit'; that no apparent examination was made of the driver or the condition of the truck which was on a twenty-four hour a day schedule; that the Lorenzo Gin Company did not know the truck driver's qualifications except that he said 'he could herd a truck'; no examination was made of him or his license nor whether or not he was familiar with the procedure of displaying flares.' We have not been able to find this statement in the record. But regardless of whether it is or is not in the record, it does not show gross negligence. Westfall and Cox then alleged that their affidavit 'would show' that the release was for bodily injuries and property damage to Westfall and Cox and 'did not relate to the controversy herein set forth.' There was also attached the affidavits of Westfall and Cox to the effect that they executed the release asserted by the gin company 'which was to cover my (Westfall's) claim for damages to my truck only and that such release was not intended' to include any other claim. This was a question of law to be determined by an inspection of the unambiguous written release in the absence of any allegation that would permit setting it aside. Reserve Life Ins. Co. v. Buford, Tex.Civ.App., 241 S.W.2d 973 (Writ Ref.); Pacific Fire Ins. Co. v. Smith, Tex.Civ.App., 202 S.W.2d 328, 330. They then alleged that the fact that compensation had been paid Henslee indicated he was an employee of the gin company 'while in effect the facts relate that there is a possibility of his being an employee of one Troy Lindsey-' and, therefore, an agreement between the gin company's insurer and Henslee would not bind Westfall and Cox and that 'a fact issue would be raised as to whether or not Henslee was an employee of Lorenzo Gin Company or Troy...
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