Wheeler v. Glazer

• Decision Date: 11 June 1941
• Docket Number: No. 7647.,7647.
• Citation: Wheeler v. Glazer, 153 S.W.2d 449, 137 Tex. 341 (Tex. 1941)
• Parties: WHEELER v. GLAZER.
• Court: Texas Supreme Court

153 S.W.2d 449

WHEELER v. GLAZER.

No. 7647.

Supreme Court of Texas.

June 11, 1941.

Error from Court of Civil Appeals, Seventh Supreme Judicial District.

Action by Nona Wheeler against Joseph Glazer, doing business under the trade-name of Uncle Joe Bottling Works, and the Dallas Railway & Terminal Company, to recover damages sustained in a collision between a street car of the Dallas Railway & Terminal Company, in which plaintiff was a passenger, and a truck owned by Joseph Glazer. A judgment for plaintiff as against Joseph Glazer was reversed by the Court of Civil Appeals, 130 S.W.2d 353, and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed; judgment of the trial court affirmed.

Chaney, DeShazo & Hyde, of Dallas, for Wheeler.

Burford, Ryburn, Hincks & Charlton, and Allen Charlton, all of Dallas, for Dallas Ry. & Terminal Co.

Thompson, Knight, Baker, Harris & Wright, J. Hart Willis, and Wm. A. Rembert, Jr., all of Dallas, Lightfoot, Robertson, Gano & Johnston, of Ft. Worth, for defendant in error.

ALEXANDER, Chief Justice.

A truck owned by Joseph Glazer and operated by his employee collided with a street car at a street intersection, and injured Mrs. Nona Wheeler, a passenger on the street car. She sued Glazer and the street car company to recover damages for the personal injuries so sustained. Each of the defendants endeavored to place the entire blame on the other, and in the alternative sought contribution from the other for any judgment that such defendant might be required to pay. The jury acquitted the street car company of all alleged acts of negligence proximately contributing to the injuries. It found that the operator of Glazer's truck negligently drove the truck at an excessive rate of speed into the street intersection after the street car had entered therein, and that he failed to sound a warning, keep a proper lookout, stop, or apply the brakes before entering the street intersection in question, and failed to yield the right of way to the street car. Each of said acts was found to be the proximate cause of the collision. Judgment was for plaintiff against Joe Glazer, and in favor of the street car company. Glazer alone appealed. The Court of Civil Appeals reversed the judgment, and remanded the cause for a new trial. 130 S.W.2d 353.

The trial court, in submitting the case to the jury, instructed the jury as to ordinary care, and defined negligence as a failure to exercise ordinary care. The plaintiff, Mrs. Wheeler, made no complaint of the charge in this respect. But the court refused Glazer's request to instruct the jury that the street car company was required to exercise a very high degree of care for the protection of its passengers, and that a failure to exercise a high degree of care would be negligence on the part of said defendant. It is Glazer's contention that if the court had so instructed the jury, the jury might have found the street car company guilty of negligence, and that in that event, under the provisions of Article 2212, he, Glazer, would have been entitled to contribution from the street car company for its proportion of any amount that he might be required to pay in satisfaction of plaintiff's judgment.

Revised Statutes, Article 2212, read as follows: "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."

It will be noted from a careful reading of the above statute that it does not apply "in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants * * * exists under the common law." Consequently, if at common law, under the facts assumed by Glazer, the street car company would have a right of contribution or indemnity against Glazer, then the statute above quoted does not apply. In other words, as above stated, the jury found that the street car company exercised ordinary care to avoid the collision and that Glazer's negligence was the proximate cause thereof. Now, even though the jury had found that the street car company failed to exercise a very high degree of care for the plaintiff's protection, and by reason thereof would be liable to her in damages, yet if under such circumstances the street car company would have had a right of contribution from Glazer at common law because he was primarily...