Palestine Contractors, Inc. v. Perkins

386 S.W.2d 764
CourtTexas Supreme Court
DecidedDecember 2, 1964
DocketA-10124
StatusPublished
Cited by157 cases

This text of 386 S.W.2d 764 (Palestine Contractors, Inc. v. Perkins) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex. 1964).

Opinions

GREENHILL, Justice.

This is an action to recover for personal injuries suffered by Mrs. Lois Perkins when a truck belonging to Palestine Contractors, Inc., collided with her automobile. The jury convicted Palestine’s driver of several acts of negligence, each of which was a proximate cause of the collision. Herman Conoway, driver of a third vehicle and third party defendant in this suit, was convicted of one act of negligence which was a proximate cause of the collision. Judgment was rendered against Palestine Contractors for $26,500 with recovery over against Conoway for $13,250. The Houston Court of Civil Appeals reformed the judgment for contribution to provide that Palestine recover only to the extent that it pays more than one-half of the judgment. As reformed the judgment of the trial court was affirmed. 375 S.W.2d 751; note, 43 Tex.L.Rev. 118 (1964).

Sometime after the collision in question, Mrs. Perkins gave Conoway a covenant not to sue.1 She agreed not to sue Conoway directly or indirectly but expressly reserved the right to sue Palestine Contractors. There was no agreement to indemnify Conoway against any suit over by Palestine Contractors. The covenant recites a ten-dollar consideration, but it was not paid. Plaintiff’s testimony was that the reason for giving the covenant was to help Cono-way retain his driver’s license which the State was threatening to suspend under the provisions of the Texas Motor Vehicle Safety-Responsibility Act.

The important question to be decided is whether a covenant not to sue given to [766]*766one of two negligent joint tortfeasors precludes the plaintiff from recovering more than one-half of the damages from the non-settling tortfeasor.

Palestine Contractors, in support of its contention that only one-half of the damages can be recovered against it, relies on a statement in Gattegno v. The Parisian, 53 S.W.2d 1005 (Tex.Com.App.1932), and on an article by Hodges, Contribution and Indemnity Among Tortfeasors, 26 Texas Law Review 150 (1947). The Gattegno case and Mr. Hodges’ article will he again referred to. Judge Critz, writing for the Texas Commission of Appeals in Gattegno, said, “Therefore, if it be found that Gat-tegno and Muir are both active tort-feasors as between each other, the release having discharged Muir as to all liability to The Parisian, has at least discharged one-half its damages.” 53 S.W.2d at 1008. The Court of Civil Appeals in this case refers to this statement as dictum, a matter we shall also comment upon later. In any event we have reviewed the principle of law to determine whether or not the statement in Gattegno should be followed.

Perkins relies on a number of Texas cases which state the rule that the non-settling tortfeasor is entitled to credit on the judgment for the amount already paid for the covenant not to sue. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949); Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098 (1904); Lottman v. Cuilla, 288 S.W. 123 (Tex.Com.App.1926); Friedman v. Martini Tile & Terrazzo Co., 298 S.W.2d 221 (Tex.Civ.App.1957, no writ); Lone Star State Life Ins. Co. v. Foster, 250 S.W.2d 949 (Tex.Civ.App.1952, wr. ref., n. r. e.); Gillette Motor Transport Co. v. Whitfield, 186 S.W.2d 90 (Tex. Civ.App. 1945, wr. ref., w. o. m.); Eckel v. First Nat. Bank, 165 S.W.2d 776 (Tex.Civ.App.1942, wr. ref.); Watkin Music Co. v. Basham, 48 Tex.Civ.App. 505, 106 S.W. 734 (1907, no writ); El Paso & S. R. Co. v. Darr, 93 S.W. 166 (Tex.Civ.App.1906, wr. ref.). With one exception, it does not appear that the contention was ever made in the above-cited cases that plaintiff’s recovery should be limited to one-half of the damages. Without such a contention, a mere holding that credit should be allowed on the judgment does not necessarily conflict with the theory that the judgment should be reduced by one-half.

The one exception mentioned involved co-makers of notes rather than joint tort-feasors. The notes were given for the purchase of a piano. After default of several installment payments, the plaintiff repossessed the piano from one co-maker and gave her a covenant not to sue. The plaintiff then sued the other co-maker alone for the full amount of the notes. The defendant co-maker argued that his liability was only one-half of the value of the notes. The Court of Civil Appeals held that he was liable for the full amount but had a right of contribution against the settling co-maker. That case is similar to the one before us in that no consideration was paid for the covenant not to sue. Watkin Music Co. v. Basham, 106 S.W. 734 (1907), an opinion of a Court of Civil Appeals which did not reach this Court.

In one other case, cited by Perkins, the contention was made by the non-settling defendant that plaintiff’s recovery should be for only one-half of the verdict because of plaintiff’s settlement with the other tort-feasor. Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex.Civ.App.1959, wr. ref., n. r. e.). In that case the plaintiff had sued both tortfeasors but dismissed one, Mrs. Foster, with whom plaintiff had settled. She still remained in the suit, however, by reason of the non-settling tort-feasor’s third-party action to recover for damages to his cab. There was no prayer for contribution. The jury found both tort-feasors guilty of negligence proximately causing the collision. The Court of Civil Appeals at Houston held:

“[It is] clear that appellants are not in position- to insist that the release discharged one-half of the damages [767]*767awarded, since appellants made no effort to retain Mrs. Foster [the settling tortfeasor] in the suit and failed to plead over against her and wholly failed to ask for contribution. In these particulars the instant case is distinguishable from the case of Gattegno v. The Parisian * * * relied on by appellants.” 325 S.W.2d at 183.

Without again reviewing the wisdom of the distinction made in the Skyline Cab case, we can state that it is distinguishable from the case at bar wherein there is an action for contribution.

It is undisputed that a plaintiff may sue one of several joint tortfeasors and collect the full damages from him. Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952). It is also undisputed that had Perkins sued Palestine Contractors without agreeing not to sue Conoway, Palestine Contractors would have had to pay the total damages. It could in turn sue Conoway for contribution, either in the same or in a subsequent suit. Here, however, Palestine Contractors contends that Perkins can recover only one-half of the damages against it since Perkins gave up her right to sue Conoway indirectly.

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Bluebook (online)
386 S.W.2d 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palestine-contractors-inc-v-perkins-tex-1964.