Dallas Ry. & Terminal Co. v. Harmon

200 S.W.2d 854, 1947 Tex. App. LEXIS 703

• Court: Court of Appeals of Texas
• Decided: January 17, 1947
• Docket: No. 13754
• Status: Published

Opinions

LOONEY, Justice.

On original submission we affirmed the judgment below, in an opinion filed January 17, 1947, giving our reasons therefor, and citing supporting authorities. On rehearing, we carefully re-examined the case and, as the result, withdraw the original opinion and, in lieu, file the present, based upon different reasons, supported by different authorities, but without changing or modifying our original decision of affirmance.

Statement of the Nature and Result of Suit.

Lee S. Harmon sued Dallas Railway & Terminal Company and Lamar & Smith Funeral Home to recover damages for personal injuries received while a passenger in an ambulance of the Funeral Home, resulting from a collision between the ambulance and a streetcar operated by the Railway Company, at a street intersection in the City of Dallas. At the time of the collision, both the ambulance and the streetcar were in active operation; the ambulance was traveling in a northerly direction on Harwood Street and the streetcar in an easterly direction on Guillot Street, the collision occurring in the intersection.

In response to special issues, the jury found the Funeral Home guilty of actionable negligence in two respects: (1) In operating the ambulance at a rate of speed which, under the surrounding circumstances, was faster than an ordinarily prudent person would have operated same, and (2) in operating'the ambulance at a speed in excess of 30 miles per hour. The jury also found the Railway Company guilty of actionable negligence in two respects: (1) In failing to keep a proper lookout immediately before the collision, and (2) in failing to observe the red lights burning on the front of the ambulance at the time. The jury assessed Harmon’s damages at $5,650, for which amount the court rendered a joint and several judgment in his favor against the Funeral Home and the Railway Company.

The Railway Company appealed without a statement of facts. The correctness of the judgment in favor of appellee Harmon is not challenged; appellant’s only complaint being that, under the findings of the jury, it was simply convicted of passive negligence, hence, was entitled to full indemnity over against the Funeral Home. This presents the only question for our determination.

It will be observed from the statement just given, that the contest is between two joint tort-feasors whose concurring negligence brought about the injury to the ap-pellee, who sued both jointly, and in whose favor a joint and several judgment was rendered against the defendants. It follows, therefore, that the rules at common law applicable to joint tort-feasors, as modified or changed by the statute of this State, are controlling.

Under the common law the general rule was that the right of contribution did not exist between joint tort-feasors, subject, however, to the rule that where a defendant or defendants are actively negligent, and some are merely passively negligent, the latter had the right to be reimbursed by those actively negligent, to the extent of any amount those passively negligent might have to pay the injured party. This common-law rule was modified by Art. 2212, R.C.S., Article 2212, Vol. 7 Vernon’s Ann.Civ.St. ch. 9, which provides that: “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, (exceptions mentioned not material here) * * * 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. * * In the case of Gattegno v. The Parisian et al., 53 S.W.2d 1005-1007, the Commission of Appeals, Section A, disposing of a similar case, said: “A reading of the above statute demonstrates that its evident purpose is to change the common-law rule as applied to joint tort-feasors who are equally guilty as between each other. In other words, under the above statute, where two persons are both actively guilty, or both passively guilty, of a tort which damages a third person, and the third person sues and recovers from them both, jointly and severally, if one pays the entire judgment he is entitled to have his codefendant contribute to him one-half such amount.” (Opinion expressly approved by the Supreme Court.)

In the case of Baylor University v. Bradshaw, 52 S.W.2d 1094-1100, by the Austin Court of Civil Appeals, among other things, the court said that: “Texas decisions accord with the following quotation from 1 Cooley on Torts, p. 277: ‘The weight of authority will, we think, support the more general proposition, that, where the negligence of two or more persons concur in producing a single, indiyisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concerted action.’ * * * In this state the rule also prevails that the tort is joint, although the tort-feasors may be liable in different capacities or under different rules of law, as where one is liable as the active wrongdoer and the other by operation of law. See Sproles v. Schepps, Tex.Civ.App., 26 S.W.2d 922; Carmichael Co. v. Miller, Tex.Civ.App., 178 S.W. 976; Hunt v. Ziegler, Tex.Civ.App., 271 S.W. 936.” (Affirmed by the Supreme Court; see 84 S.W.2d 703.)

In the case of Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738, 742, by the Eastland Court (writ ref.), both the Light Company and the Mayfield Company were sued for an injury received by plaintiff as the result of the joint negligence of both defendants proximately contributing. The Light Company’s negligence very clearly was of a passive nature, whilst that of the Mayfield Company was active in nature. The trial court entered judgment for plaintiff against the defendants jointly and severally, but afterwards sustained a motion by the Light Company for indemnity over against its co-defendant, the Mayfield Company, and rendered judgment against it in favor of the Light Company for the full amount of the judgment, providing that it might have execution for such portion of the judgment as it might be required to pay; in effect, holding that the Mayfield Company was not entitled to contribution from the Light Company. This holding was reversed by the Court of Civil Appeals, and, the case being reversed and remanded on other grounds, the court said: “Upon another trial, if the court, or jury, should find the defendants equally guilty, then the defendant paying the judgment, if any, to the plaintiff would have the right to contribution to the extent of one-half of said judgment against its codefendant. Gattegno v. The Parisian, supra.” (Citing other authorities.) Also, see a similar holding by this Court in Goldstein Hat Mfg. Co. v. Cowen, Tex.Civ.App., 136 S.W.2d 867 (part in point, page 876).

In view of these authorities, we are of opinion that our former decision affirming the judgment below was correct; hence appellant’s motion for rehearing is overruled.