*1 any competent which contestants ultimate evidence and circumstances apparent any, influence, most in could have that to be offered. It fact of undue bearing some of facts have had may which could there be conceded ferred. which, question of state- opportunity, have consisted as held evidence of with, by, deceased ments or transactions Craycroft Com. But, Crawford v. testatrix, incompetent. relevancy.” said and therefore 275, “has W. S. testimony proponent 9, 12 Mitchell, failure offer such Tex. Brown testing properly set aside probate could the considered cannot not be of a will “the most, which, no more sufficiency do proof of the evidence. facts undue opportunity exercise that than show existed, raise bare or to influence may have been suspicion influence such me, is about Such, seems to used.” case in this evidence legal effect influ question undue upon bearing et BRAD al. v. BAYLOR UNIVERSITY distinguished ence, from the undetermined SHAW. incapacity. mental issue of No. 7364. No. Motion mind that the contest- be borne It must Appeals of Texas. Austin. of Civil Court men- that testatrix to show ants 27, 1932. June incompetent tally evi- a will. The to make ample support that issue dence finding Rehearings Sept. 28, Denied issue Had that incapacity. jury, there been determined have the evidence sufiiciency question- been judg- support verdict to the having make But, failed to .ment. unsound- finding upon of mental issue a ness, depend alone must finding influence. undue support the in impairment of happens It so degree thereof nature mind and the of undue important issue facts testimony to offered Contestants fluencie. subject testatrix was to delu- show that testimony primarily which was sions. This testamentary designed lack of to show the though purpose, failing capacity, supplied in that even explanation an all sufficient testatrix distrust manifested unreasonable other contestants. T. Huff toward W. question why fully she answered It should discrimination the unnatural unmerited make the contestants provisions rea- will. With of her a sufficient action, account for her son thus shown Henry opportuni- Huff mere fact her, he was mistrust- ty or that influence manager estate, of her T. ful of W. Huff and had sought him, management have the tak- considerably probative loses en from Since there was some value. testatrix’s unsoundness, mental seems to just legitimate me that ence Huff infer- Henry facts evidence may have been influenced his moth- distrustful of W. -become T. Huff as er to any way was in im- influenced that testatrix properly Henry Huff. fact that Contestants bene- stress means to show ficiaries had the influence, or at least was no undue to offer bearing upon important issue, evidence testify. think, however, I but did not show fails to the existence *2 Atkinson, Jno. Waco, appellant B. for
International & N. R. Co. G. Sewell, Taylor, Garwood, Morris & of Hous- ton, appellee cross-appellant Brad- shaw. Hale, Waco, cross-appellee Jos. W. Union Ins. Automobile Co^ j. McClendon, c. litigation following grew out of the facts: January 22, 1927,Wesley (herein Bradshaw Bradshaw), riding motorbus, called was tween the bus and train while in a result of be- a collision International Company (called & Great Northern Railroad railroad) public.crossing herein in the the corporate with- Rock, Wil- limits of Round county. Bay- liamson lor used from The bus was owned University (herein Baylor), was called transporting its athletic teams to athletic intercollegiate games which participated. its teams On the occasion Baylor basket ball team was be- transported ing game for a from Waco to Austin University evening of Tex- Bay- Bradshaw, a former team. student team, lor eling trav- and former member guest invitation of the bus as a at the Baylor coach. Bradshaw sued the railroad in McLennan county, alleging negligence. various acts of impleaded Baylor, seeking (in The railroad against it) indemnity, went (in alternative) contribution under R. Indemnity art. 2212. on*two grounds: negligence Baylor 1. That the was the sole the collision. negligence, any, 2. That the rail- passive only, Baylor road and that of ac- tive. predicated Contribution the- Baylor ory railroad were tort-feasors. The trial court severed the cross- railroad’s against Baylor action Baylor suit, from the Bradshaw- verdict, a directed ren- dered take noth- railroad ing by against Baylor. its cross-action There was a mistrial the Bradshaw-Rail- suit; (November23,1927) road the and thereafter $( n Bradshaw following (for- latter executed the document parts omitted): mal “Whereas, January 22nd, about Rock, County, or near Round Williamson Texas, Wesley injured in Bradshaw was a col- bhs, between a certain lision then Hale, Harris, operated Jos. W. Nat. and H. M. Richr owned and Univer- ey, Waco, Gaines, corporation, Austin, sity, passenger all and E. C. and a train of appellant University. International-Great Northern Railroad Com- ny any Wesley prosecution whereby ac- Bradshaw action or party, the against Baylor said legally University, persons damages tions person other claims appear testify him, agreeing Railroad as a wit- between said and as liable them, agreement Company known ness to the facts and said claimant true reasonably involving a covenant not otherwise manner made assist has been *3 necessary; understood, however, assignment being sue, ac- cause of it of and an the University; handling any money Baylor part against in he is not to be out in tion expenses instrument, now, therefore, suits, of de- witnesseth: such suit be this frayed by International-Great Northern of sum For and consideration “1. in Company. Railroad ($6500.00) hundred dollars six thousand five cash Great day by paid expressly International- in “3. It is understood that hand this this Wesley Company accomplish Railroad Northern strument is not a re- intended hereby Bradshaw, receipt arising of which sum is lease of the cause of action of account on Bradshaw, Wesley acknowledged, injury Wesley has Bradshaw said the said of sue, by agreed, presents these but is intended as a covenant not to covenanted agree coupled Interna'- with said with an of does covenant of the cause Company Baylor any, against University, Northern action as Railroad tional-Great future, present any not, specifically time in the he will with the reservation noted.” any prosecute action whatsoever of form Final in the Bradshaw-Railroad against Northern the International-Great rendered, reading: suit was thereafter per- Company, Railroad and will not sue or this, day May, 1928, ap- “On the 7th of company of be account mit said sued on pearing to the in Court all matters con- Wesley Bradshaw, injury in so said troversy in .the above numbered and entitled prevent, power far as it lies within his the parties cause had been settled between the pro- Wesley agrees fully said Bradshaw thereto, opinion the Court is therefore indemnify tect, said hold harmless , cause should be dismissed: Railroad Com- International-Great Northern is, therefore, ordered, adjudged by “It pany against any brought and de- action for by creed against the Court that any person this cause be and In- other whatsoever hereby cost, same is Compa- dismissed at defendant’s Northern Railroad ternational-Great ny, assistance, consent, execution issue.” with the for and Bradshaw, Wesley co-operation said brought This suit in the district court Wesley injury Brad- of the said account of county of Williamson in Brad- the name of shaw. against Baylor, compensatory shaw dam- pay- Further, ages in consideration of the “2. for the he received as a result $6,500.00,the said sum of said negligence being ment of the several acts of assigned day Wesley conveyed, and alleged. Bradshaw has this assign by presents these does Baylor impleaded , up railroad, setting convey the International-Great unto agreement the Bradshaw-Railroad as a set- Company, reser- Railroad Northern ; alleged tlement 'feature specified, his entire hereinbefore vation Baylor agreement was void because Baylor has, against any action, Uni- joint tort-feasors, that and the railroad were versity, persons, on account and all other Bradshaw had no substantial interest in the injury Wesley in the said Bradshaw suit, in recover event excess could hereby mentioned, auihor- above the collision Baylor asserted, judg- also in case $100. of ment went indemnity against izing Northern Rail- International-Great against it, was. entitled to attorney employ, Company in his road railroad, and in any prosecute ac- action or name and behalf to contribution, upon alternative to same Rail- Northern International-Great tions grounds Mc- asserted necessary pro- and advisable to road deemed - county Lennan suit. assignment, interests tect its prosecute any railroad, actions in name of defense cross-action action Wesley Bradshaw, Baylor it, against up under- set acts of the said same negligence alleged petition Northern the International-Great the Bradshaw stood that Company pay (1) (2) proximate is to assume and sole active Railroad incurred, including collision, and, alternative, expenses court costs cause of the in the all and ing attorney’s prosecut- involved in the if bution held to contri- be have the fees it, against such action or actions. the amount to “that apportioned defendant be as what said Wesley said an in- “The Bradshaw reserves paid re- amount spectively.” each them should terest, however, action, said cause of brought suit or suits in the result issues, jury upon thereupon, special trial to the extent an amount not to was to resulting following findings: $100.00. exceed “Furthermore, Wesley guilty the said 1. That Bradshaw obligates co-operate In- himself to was a cause of the collision Compa- following particulars: Northern each ternational-Great Railroad. p. driving bus R. bee authorities cited A. L. bus driver (a) see, also, (4th Ed.) pp. Cooley corporate Rock at on Torts of Round limits within the per the 263-268. hour as 20 miles excess of crossing the colli- approached where bus Regardless of the effect of the release sion occurred. injured party, incline the bus (b) turn failed to bus driver that, coupled assignment, view where with an dis- after avoid the collision the left so operate estoppel against it should not as an approach covering train. assignee to assert not in he was bring (c) the bus legally failed to The bus driver par fact liable. The situation of the stop driving complete track. before ties is not the same. The re compensation liability ceives attempted for an (d) asserted the the driver to beat The bus assignee; whereas, latter, by accelerating crossing over admitting discovering ap- without liability, buying *4 speed is the his bus after peace assignor upon proach train. the considera assignor’s tion that he against claim assert the servants, employees agents, and the That party. impedi a third is There no guilty negligence of the railroad were of assignee’s ment to he acquiring the if the claim proximate cause, sole a but not which was proximate the tort-feasor, is not a and we no see they .valid cause, in that the of litigat why barred from should reason he operated of collision the “train the the regard question, merely ing that because speed.” dangerous high of rate and at a making doubt to warrant ed of sufficient $6,500, paid presently, would “if 3. That coupled assign with the settlement ment. We will therefore treat the if Wesley compensate for the Bradshaw assign the ques- upon.the occasion received valid, jury ment as the evidence and/or tion.” findings noTiability conclusively establish that there was part negligence of on the Other issues of part the on the railroad. up- submitted, railroad were neg- finding, aor there was either At the outset it on which should noted that negligence. finding negative conclusively These of actionable ative issues will be noted does evidence they may negligence part become later as on rail actionable presented. pertinent questions respect (high jury to the several in the road found dangerous train), rate jury findings, Upon trial the above conclusively but does show that judgment Brad- in favor of court rendered shaw of findings negligence part of actionable on the against Baylor $6,500, in favor Baylor necessarily negative of negligence plea against Baylor upon actionable contribution part on brought the railroad’s in the found $3,250. The case is the railroad for respect, Bay- then an there is upon appeals irreconcilable con separate court findings applied evidence, flict in the and ap- the railroad. Bradshaw has not lor and they mutually are cross-assigned pealed destructive each error. other. support verdict The in such event would not point first will is the va- we consider party. a either for, See lidity pany upon to the railroad com- (Tex. App.) 243 W. v. Foreman Com. S. Hines theory a tort- that it (Tex. Forney App.) 479; Com. Brewster feasor, jury findings the evidence and Lawson-Richards, 175; Inc., v. 223 W. conclusively Baylor showed that S.W.(2d) Co. Civ. Lbr. Blalock was the sole cause of Speer Spe authorities cited collision. Issues, chap. p. 563, cial later discuss the effect of the cov- We shall however, conflicting findings, are not to sue and enant stituting, as con- face, their and since made no on objection Bradshaw non, release settlement vel his motion for verdict new -liability. present our dis- railroad’s In otherwise, moved ob- trial the instrument as we will treat cussion in findings, based we tained and release. a settlement effect beyond precluded probably going from assignability the cause of action findings themselves to determine the they whether questioned. generally is present irreconcilable conflict. But authority a conflict is There question and whether there since evidence is parties to a settlement whether support finding rail- single tort can thereafter .assert closely related, road’s will consider the points. are so we party not in fact a released was tort-feas- from both view- question usually arises in a suit or. The the tort-feasor. the that tort-feasor. injured alleged party the other authority traveling high line One holds south on bus estopped party asserting paved highway way very is heavy from No. settled with was not in fact traffic. right angles intersects the railroad track at The release in such case is held about 700 feet south of the main operate Rock, upon high- full satisfaction for tort. street Round way observations, turns to east. From south and this turn number his made highway slightly crossing manifestly to the grade. down- estimates of distance are based buildings There are several such observations as well as his recol- highway happened time, west of the lection cut oft a view of what point following quotation of the railroad west about evidenced until a from from crossing-is testimony feet reached. From “As to the to the cross-examination: point crossing I 100 obstruc- how reached the conclusion that we were toolhouse, tions small were a a line tele- crossing feet from I saw when phone poles, car, train, passenger posi- a box car taking the tion I my noted. short hereafter house, west of cars and distance the tool crossing, Branch) position (Georgetown a branch line in the road I from which could see northwest, extends to north say from between them. When I that we were 100 just side approxi- which a track crossing, extends the west from it is feet from the junc- a short farther; distance west ; might have a little mation been we an- possible main line. western Georgetown tion with the it is been far gle main between the line feet.” crossing Branch and 331.3feet from His version occurrence is embodied upon the The box car was small toolhouse. side testimony: excerpts following from his “ track, tool- a short distance north of the * * * No had made exclamation house, little farther north anything or said about a train saw before I Georgetown stood Branch coach. At said, *5 it. out; I I When first saw the train ‘Look ‘Look point opposite the the main about toolhouse said, there ais train.’ When I southwest, and line curves toward the from (the driver) out!’ Joe turned the Potter straight quite this curve is a distance. bus to left. As to in which the the manner line, There is a 351-foot trestle on main the left, he turned the bus to the and then "this extremity the east of which is 616.3 feet it, came, will I about I know crash and what photographs west the From the highway. the train it show I first saw state that when appears in evidence it that the toolhouse en- and the end up toolhouse between the ed the there was tirely cuts the off of the track to the view out, boxcar, I to told driver look and the highway to west one on the between straight Going down that a train. crossing. about and 50 65 feet north of the the the track the motor of street to railroad high- telegraph poles intersect The line of left, slowed, a turn and he made bus and then back across the track angle; crossing. way from the at feet about 85 slight at a freight position car and coach of the exact going road was other words the conclusively Very shown. little is track west crossing (indicating), and the bus like this was from of the visible toolhouse (indicating) like that about was the track highway north of about 230 feet from right the rear about hit the bus and train Georgetown crossing, even when the whistle, train right never heard the I wheel. clear. was * and side track were * * Branch ringing. the bell and never heard position 200 a about to the due residence gone say had fifteen bus I should crossing. approach- A train north of the feet twenty-five time I saw the from feet or train and called ception my appear crossing from the west would ing the to it the re attention until directly coming toward an ob- almost to be in Joe Potter was words highway any within on at server in which handled manner he dicated crossing. approximately of the 100 feet Mr. Potter whether I do know the bus. and a short dis- depot track north of the was right to his after I left or looked rainy highway. a It was east tance train, was because I look out for said large pool day of water or was a and myself. looking train indi at The first just highway and north east mudhole my had I that he received cation had eyewitness- several There were the track. warning slowing of the motor and was testimony right- the a number toes the left. It was a turn to then proxi- as to the of theories left, angle whom say but turn to I should about of the accident causes thirty-five degree cause or twenty-five mate be turn.” constructed. Gooch, occupant bus, another tes- knowledge hap- Baylor coach, my he Wolf, testified that of what tified: “As aisle, right-hand pened on the the time the bus turned around seated was there, dpiver. left, up 5 feet from the bus about the concrete block the crash until side of He was the knowledge came, keeping a for trains from state that lookout will we were —I going making south. His first the bus turned down toward the track—-I remember approach curve, turning the train was of the the the left there open- road, engine appear any paying and I wasn’t he saw down attention to when driving ing and the car. the toolhouse box couldn’t between see —I straight ahead, looking placed I was the distance bus He crossing left of bus, got road, at on this time from to feet. down the holler, day out, returned the scene I one he some ‘Look Later there’s heard operatives right, 4.-That the toward train realized train,’ tlie looked and I appreciated occupants, peril on, looked of the bus station the side that (indicat- way but a time the exercise not at when coming down at the track ing), ordinary got means care anything, in the use of all of and we there wasn’t just their their little command and consistent turned on down there and bus safety passengers own oh and that of the wheels and the front to the left bit train, they the lision. col- track, my could avoided shoul- have and I over looked back right it, engine and I was der and the just up up en- I raised raised gine That the collision result was not the us, hit I remember —it accident. unavoidable had I knocked The first intimation me out. jury findings The effect of the was coming day on that each of four derelictions driver of the bus out, say, there’s ‘Look heard some when I (a, b, c, d, above), negligent my the distance As to train.’ train, formed entered into and exclama- when the track we were from an essential resultant causal element it, looked, as given, I I heard tion was —when collision; any that if ele- one of these five way said, right my station —that I ments had been absent the collision straight (indicating), ahead I and when looked occurred; re- that the causal front, and then it was I see track could lation of each and not remote. yards twenty approximately fifteen contends front track. looked to the the bus turned a continue at the same straightened track; Just as I alone, taken event in connection left; it did not little to the negli- speed findings with the four of actionable left; angle gence Baylor’s part, eliminates the up on across the started causal factor in the col- .train thought going make it all I it was lision. right, my shoul- I looked hack over driver bus was made aware engine der and the on us. I approach the train when reached engine not heard the whistle at time be- track; point at least to 100 feet from said, out, *6 a train.’ there’s one ‘Look some fore As to whether any negligence part up and that on his engine whistling after was by jury findings as is eliminated and' the train look out for some one said to contributing proximate a sion. After cause of the colli- us, engine I a shrill on heard was that, jury he found engine hit bus—that whistle when by prevented (a) have ing bringing turning the collision reduc- was all.” hour, (b) speed per miles below 20 he had Aten testified to a conversation complete stop, (c) a or the bus to after few minutes Potter left, '(d) trying instead “ ‘Well, it in which until I said: I didn’t Potter see beat the train the track. Since these across close and it so that was close was preventives, wei’e alternative the choice stepped time, quick gas I on the I I didn’t have so driver, negligent his was with the get could; across as as I have didn’t employ failure of them constituted there, it time to turn And was too close to ine.’ contributing proximate each a cause. excited, then he said he was said—he concurring (these proximate caus- Whether stepped he didn’t know whether he negligence conceded) railroad of the es gas brakes; or on the afterwards he said he operatives additional con- could constitute an done; had didn’t what he he said he know proximate depends upon curring wheth- step gas meant did not know but support finding er such will the evidence done, said; had he he he said train what was so bearing a direct or to him.” close adopted fluence the course of action speed by apprized by . The the driver after he the bus was estimated approach the per hour; the train. If various witnesses at from 15 30 miles the driver mis- judged speed plac- while and for train was per reason bits to full at from to miles not slacken the ed 50 hour. did 70 per hour, bring below miles given above, jury In addition to those stop, negligent speed of the train following findings: made the motivating was a element in the driver’s ac- guilty negli- 1. That the bus driver was regard; tion in this and thereafter gence keeping in not a lookout for trains error in driver discovered his and approached crossing, he but this by perilous position reason his then two not a cause of the accident. escape appeared (turn alternatives of to 2. That the bus driver failed to clean the across), beat the train left or windshield, negli- this was not then the was still confused became excited chose gence. latter, operatives contributing operative proxi- the train not fail as a That did proper lookout, (a) keep actively (b) cause, the mate to blow contributed whistle, ring (e) placing bell. the driver himself action position did normal faculties distinction classes his between these two where Gulf, clearly by properly Judge & S. of C. torts is function. See thus drawn Cool- 308, ey: Ry. App. “Although Wagley, always definitely P. v. 15 Tex. Civ. Co. is not denied). (error is so 40 W. And this stated the rule seems to have become true, er, generally that, though although the driv even conduct of established there is ordinarily by feasors, tested the standard concert of action between tort prudent complete man, if single, constitute the cumulative effect did not their acts is prudence injury, fore exoneration from sight lack of indivisible which it cannot certainly part. could be Otherwise there be said .but would have resulted thing proxi concurring acts, no such mate law a the concurrence of such the actors joint feasors; are to be held cause. liable tort whereas, acts, if the results well as theory evi- Since is deducible separable, theory least, that it so dence, ample support findings have can be the act of each said that conflicting. therein and are not injury, resulted it some however difficult Upon remaining controlling issues may practical be as a matter to establish following we have reached con- proportion injury the exact by, injury caused there- clusions: each can be held liable for such The collision resultant by as was 1 Torts caused his acts.” tort; single, constituted a indivisible (4th Ed.) p. 279. negligence Baylor since road each rail prevails In this state the rule also contributing proximate awas joint, although that the tort is the tort-feasors cause, joint, tort capacities be liable under different joint railroad were tort-feasors. law, different rules of liable where one is sue, wrongdoer We construe the covenant not as the active the other coupled settlement, assignment, operation as a Sproles Schepps law. See release, liability extinguishment (Tex. S.W.(2d)922; App.) Civ. Canmichael railroad; of the single and since the tort App.) Co. v. Miller Civ. W. 178 S. operated extinguish Ziegler (Tex. Hunt v. Civ. 271 S. liability extent of the paid there the consideration compromise, effect of settlement for. there After the nothing there was or release one tort-feasor fore action excess of shaw served from ing of Bradshaw’s cause left liability of another tort-feasor has (in except (not exceeding) the, $100 given diversity rise of view in some of already $6,500 paid to Brad aspects. However, agree “all courts railroad), he had re the. the consideration tort- *7 assignment. jury find compensation feasor for release is full for the fully $6,500 compensate Brad injury, the other tort-feasor is dis nothing left further shaw for his charged ; but short of this there is dis Baylor, for him to recover from because he agreement.” p. 50 A. L. R. 1060. already received that sum from the England In and some of the American railroad, and his entire cause of action was courts is held that “a release one re- extinguished extent, to that and therefore all, although expressly leases the release in full. stipulates the other defendants shall require These conclusions some elabora- Cooley (4th not be released.” 1 on Torts tion. Ed.) p. prevails only Where 264. rule way joint Texa$ decisions accord the fol settlement can be with one effected quotation lowing 277: Cooley Torts, p. releasing from 1 tort-feasor without the oth- weight authority will, through sue, “The ers is is covenant not to think, support general generally proposi operate the more held not an ex- tion, that, tinguishment where the two cause of action and there- persons producing single, more joint concur in fore not to release the other tort- injury, persons indivisible then such feasors. jointly severally liable, although there circuity In order to avoid of action cove- duty, design, was no common common may nant to sue a not sole tort-feasor be concerted action.” plaintiff’s up action; set in bar of but in. distinguished jurisdictions This class torts is to be some it is held that injury produced by remedy joint from those which the of one of several tort-feasors separate bring each is from that of the suit for other. is to 1 breach of the covenant. wrongdoer Cooley (4th Ed.) such case each p. is liable on Torts 58 L. injury by himself, 299, for the done which rule R. A. note. We doubt this latter rule applies although may recognized be or even would be difficult this state. There impossible separate damage manifestly avoiding- done is circuity much reason (Tex. each. Sun Oil Co. v. Robicheaux action in one Com. inas App.) S.W.(2d) 23 other.
1101 wrongdoers recognized per- state several joint in this to one of several It is now well injured may who sons that settlement made with one found liable to the party, others, releasing of such a cause of ac- tort-feasor without person necessary tion to such a consideration of the covenant is resort payment injured money of a substantial this end. sum of (cid:127)not to sue in order effectuate by way party, compromise, given should release with such reservation is against public policy, not be held El void as not to sue. same effect as a covenant Paso & policy encourage App.) Ry. (Tex. it promise is the law to com- Civ. Co. v. Darr S. legal controversies, contrary Louis, denied); 166, (error 93 S. St. 167 deprive injured party App.) rule (Tex. Ry. Civ. I. M. & Co. v. Bass advantage joint (error denied); able to offer to one Tel. “An 140 S. W. Cox partial assignment (2d) tort-feasor a his cause Co. S.W. Civ. action as an can, however, to effect com- person inducement have but promise.” injuries; the amount satisfaction for his person in the cove sup- whose favor authority We are cited to regarded given ports proposition; wholly nant not to sue is bewill and it is joint tanto, satisfaction, pro tort- interpretation toas variance with our well- p. recognized legal principles. authori L. R. feasors.” 50 A. applies rule ties there And same cited. general application It ais rule of joint pp. 1253, 1254,and to note 11. J. debtors. C. contribu absence of statute there is no joint tion between tort-feasors. principles By applying above (clearly The reasons for the rule and force rail- and the transaction between Bradshaw road we think fully Torts, pp. Cooley 301,302) stated difficulty in its little -is grounded long are recognized in what the courts have proper analysis. Baylor legal rail- principles public salutary tort-feasors, .and therefore road policy; binding rule should be held joint principal obligors single, in a indivisible Legislature unless and until the deems it wise assignment and cove- cause nant not of action. change it. What the law such con complete settlement sue was prohibits directly, it should not siderations $100) (except reserved of Bradshaw’s rule, ably countenance indirection. The con- far as he was cause of action entire so by Judge Cooley (while discussed on the Su cerned, nothing remained preme Upham Michigan) Bench of 38 Mich. v. Dick except reserved one else inson, wherein And amount he received $100. since the to a court tort-feasor “The held void. The (as compensation found) for his full say: supposed to have rule injuries, of action was settled his cause important purpose parties keeping within thereby extinguished. principle full and applies prudence, limits of caution and and mak the ing joint prin- only in torts but obligations them careful observe the cipals particular in contracts. form imposes upon per the law them. parties which the instrument executed we any ground giv ceived that there can be think is immaterial. of it The effect was to ing indirectly such aid when it would be re divest Bradshaw of entire cause action presented directly fused the demand were (except $100) attempt the reserved and in the name of the himself.” in the railroad. vest it This latter he could Cases are rare which one tort-feasor has do because the railroad awas tort- *8 sought (through assignment) feasor, to enforce the action, liable for the entire of injured party against joint claim the of a vesting and the in it the cause of action of tort-feasor. far So as we against Baylor obligee have been able obligor constituted both it discover, question, arisen, whenever it has in same of indivisible cause ac- validity against been has decided tion, necessity extinguished which of the en- assignment. Boyer Bolender, 324, v. liability. analogous 129 Pa. principle tire the is is 127, Rep. 18 Am. A. 15 St. Tanner rights,” of “confusion of which doctrine Bowen, 121, 876, (N. 34 Mont. 85 P. 7 R. A. qualities L. as “a union of defined of debt- S.) 534, 115 Rep. 529, ; Am. St. person. 9 Ann. Cas. 517 or and in creditor the same The ef- Co., 397, 338, Seither v. Traction 125 Pa. generally, A. is, fect of a union ex- such 54, Rep. L. R. A. Diet.; 11 Am. St. tinguish 905. Law debt.” Bouvier’s p. J. O. compromise rule law favors disputes litigants gist and settlements of between of Bradshaw’s contention practice assignment though valid, warrant for a in is no which even itself is to the railroad was recognized public joint policy, violative of a merely of rule the latter was tort-feasor with Baylor, following proposi- in in because some instances it would embodied is injured party definitely an enable tion: law it is make more ad- “Since established vantageous might personal than he action settlement other- that a cause of for juries may general assigned, wise be able to make. The be and since there is no effect of prohibiting the rule which Bradshaw contends or rule of commonlaw statute assignment w.onld encourage litigation against prolong in the of such a cause action be to of assignment protec- through indemnity ure of relief an same to the of those not entitled interest hand, joint or contribu- oc- the one A tort-feasor tion theOf courts. recovery spec- cupies advantageous position tion on the In the former the other. most injured party against upon would his be whatever would ulate cotort-feasor, it or outcome suit allowed, to; whereas, practice latter be entitled in the and were such proportionate (in indemnity) thing full a settlement case would be the usual (in recoupment compromise contribution) al- More- form. is assume that recognize over, tort-feasor lowed. of one against acquire his to cotort-feasor of action the cause need not enter into a detailed discus We former to es- enable the would relations sion of the various classes of profit cape injury reap liability from an or even in which has been held that the own dereliction contrib- to which his Generally demnity does or does not exist. upheld uted. instant If the party speaking, com it is held that where one case, railroad vest in the by tort, liable and the other mits originally every right held which Bradshaw law, where it can some virtue of said rule against Baylor, the rail- entitle and would wrongdoer, party active that one is the full amount road to recover so, only passively indemni the other is while release; had the it had for its own ty many cases on be allowed. will There $26,- damage amounted to found that the subject state, believe but we this $6,500, 500, instead indemnity allowed is party none profit $20,000 the transaction. have a net .negligence whose affirmative act hand, made its On other very injury constituted a con peace with Bradshaw under a ment, would be entitled instru- like tributing proximate cause thereof. The case to the same relief nearly cited as most is Austin (through Bradshaw) which the railroad contends for. Thus created for a now Ry. App. Faust, Electric Co. v. 63 Tex. Civ. an incentive would be 449, plaintiff 133 S. W. that case between race tort-feasors against judgment recovered a way rail the street as to reach the company inflict ice first and obtain an of the cause by runaway company; ed team the ice action; of attitude action who and for the latter to assume the runaway being by the tween a caused a collision be offering auctioneer cause of wagon company the ice car against wrongdoer others to the railway company. ice com street injured party, would bid the most. pany indemnity by cross-action cases, profit many by in a rule. confer the would no doubt against railway company. gen the street policy it is not But of the law to eral demurrer to cross-action was sus litigants benefits one class Appeals tained. The Court of Civil affirmed expense of another. The rule contended plaintiff, the the as to the but reversed justified only hypothesis for could be and remanded the 'cause as to protection pres- that it was essential the cross-action. clear rights injured party; ervation of the which law otherwise affords just opinion allegations what cross- case, manifestly since the petition present action were held to is ample protection. passive negligence. sue of active It does course, are, of There certain appear, however, of cas- classes admis injury causal relation which the president es railway sion street manifestly tort-feasor is company secretary company inferior of the ice secondary compared solely injury of the that caused the company’s for other tort-feasor. In such cases negligence, the law mer and that it was recognizes equity in favor of the former plaintiff company, liable both to ice indemnified excluded, latter the extent error, and this was held as be compensate be called the tween the two defendants. Writ error injured party. And rule part contribu- part refused in dismissed for among joint tion has jurisdiction. tort-feasors been modi- .prior want of This was very extent in (page fied to limited 55, 1) state act of 1913 § c. which for *9 statute. Article 2212. jurisdiction upon the first time conferred Supreme case, in however, provides Court where the .cases Courts of either the law Appeals judg remedy Civil rendered final (cid:127)its own the enforcement equity right recognizes; ment. essarily applied refusal of the writ or and it therefore nec is not judgment injured party in of the left to the will whether favor of plaintiff Appeals indemnity or which the Court of Civil contribution will allowed. af case, remedy, ; independ- firmed and jurisdiction in either the dismissal was a exists denial of ently party; Supreme in from Court to consider Ap and such the cross-action which peals Court of can neither de- Civil remedy from nor tract add to which had remanded to the trial court for affords, principle upon itself is in no further trial. The law to sense essential which the right Appeals judgment equity its of the Court of Civil rested the enforcement recognizes. unquestioned soundness, which law Nor is reversal the meas- name
H03 (opinion by Appeals), parties, ly, negligent Commission of the two to “as “clearly prin- passive, recognizes merely said that the act ciple tort-feasors, the was of one was joint amongst occasion, only produce of enforced contribution the was the per party changing negligent active common-law other thus literally subject. petrator wrong, recov true the former rule It is judgments against against applies cited er in tonio v. The cases rendered over latter.” statute two or purpose (San support wrongdoers. pronouncement An the evident more But 1109; 266, rigor Smith, W. 94 Tex. 59 S. relieve the of the act was to 151, Talerico, place burden, law, Tex. S. W. San Antonio v. of the common so as to Kampmann Rothwell, amongst equally upon Tex. themselves, all the 758) (N. S.) R. A. 109 S. belong 17 L. reason to tort-feasors. There is no solvent hold Legislature of two that class which meant to exclude perpetrator where, actual tort-feasors is the wrong, those cases the benefits as the statute only here, plaintiff other is held liable and the to sue all did not elect tort-feasors; every virtue of some of law. rule im- consideration may, pels sued us hold defendant regard Faust Case as au- We do not to, bring in other should be allowed thority Baylor as between for the contention that way wrongdoers, provided so in such he does former was the railroad the prejudice delay or otherwise passive as not to only tort-fea- latter active sor. The active plaintiff’s case.” negligence of each affirmative appears verdict to the face of the before court was the cor- contributing cause judgment been a rectness of the trial court’s sustain- general Certainly say ing cross-plea collision. cannot that such demurrer to a of de- law; seeking implead alleged joint as a fendant true matter and if the to* presents pas- gives right issue of tort-feasor. The active statute no such negligence, ques- tort-feasor; give to a sive it does so fact defendant nor does it right of tion determined subject applied of should have been a contribution be availed other than where judgment jury. against Our has been views rendered two or passive necessarily judgment active and more. This means clearly upheld plaintiff. right A the instant case are defendant has compel plaintiff App.) (Tex. bring alleged v. Joiner Com. 44 S.W. Valee other wrongdoers (2d) 983, reversing case, Eastern T. E. Co. v. Joiner into the clear infer- S.W.(2d)917, opinion cited .the ence is that a a defendant would Civ. implead joint tort-feasor, not be allowed to railroad. delay plaintiff. or inconvenience of stated, 2212 modifies As article plaintiff objected suppose And ground among against contribution tort- rule feasors, inconvenience, might in that it com- very limited extent. This but to plicate case, and confuse the issues in his wording, great in its manifests care article ject issues in which was other he not intérest- thorough familiarity its and evidences thereby prolong ed, and the actual trial and subject By with. dealt authors express increase the cost burden. If this conten- language operation its limited to sustained, cross-plea tion were judgment has been rendered cases which against delay obtaining service, and, should among tort-feasors, or more two account, cross-plea on either were dis- right indemnity whom no otherwise charged or contribution judgment against missed, and the went exists, and one of them has dis defendant, right would the latter have the judgment. right of contribu pursue independent the dismissed in an expressly codefendants, tion is limited re so, right action? If is this limited to those gardless others, sued, might of whether implead against has he him, the case caption original liable. The also be privileged is connected with sue one who p. 360, 152), (Laws 1917, c. act of unusual may the tort? number clarity brevity precision, and marked car inconveniences of ing arise from extend- limitation. ries the same reads: “An Act beyond express wording; its the statute granting among contribution de whereas, application defendants arising fendants eases out of supported can be reason- emergency.” declaring an tort salutary grounds, policy able which limitation is carried same into the legislative it was function to decide. emergency clause reads: “The fact entirely abrogates the statute To hold the common-law no law in is' now State of Tex- rule contribution granting contribution between appears among joint tort-feasors to the writ- judgments jointly rendered defendants instance “a clear unwarranted inter- er as *10 against severally in defendants actions legislative prerogative” (Speer with ference recovery in tort which the based on against is had Issues, p. 419), Special this, and on Law of tort-feasors, such defendants as procedure, up- mere matter of court in a on a emergency,” etc. creates dealing subject substantive of law with recognized Cuilla, immemorially principle pub- In Lottman of decision, policy. contributing proximate of cause of the lie the if limited to train the was court, collision, the exact the limitations of the before extend the motion that states beyond express point right determining “the vital in the of a defendant the whether negligent statute, acts no further than of the -driver of the were bus proximate impleading such as to the constitute of one tort- sole cause authorize the of by tort-feasor, the collision the is detail as to the where feasor defendant where a be done without given warning delay bus was when driver the inconven- this ience to approach of plaintiff; the of the train.” and loath It contends be regard in this that give opinion Wolf’s this- ef- calculation of further authoritative qual- distance as 75 to 100 feet must fect. be by testimony ified an his further this length gone at have somewhat While we approximation and that the real distance- subjects indemnity into contribu- of depended upon where train first could tion, relation to the issues because of their by traveling high- be seen south on the assignee railroad, between Brad- as of way, 100, 125,' whether that distance be shaw, right Baylor, physi- 150 feet. cal It further contends that the independently indemnity, to contribution or facts, by map photo- as shown rights assignee, of is not involved as its graphs evidence, in demonstrate that the train shown, in indemnity the case. As we have point high- have at a could been seen on the all, arose, at or contribution way crossing. 200 feet from the a matter of of and at law because While Bradshaw, is true that Wolf’s statement the entirely independently with and this railroad settled estimate, was an true distance it is also fea- judg- that this rights estimate based his ture of settlement. Whatever acquired ment both of the distance at the time of railroad could under' Bradshaw, occurrence and observations made in name of assert either day in assignee. later when he returned or in its own whether But- purpose viewing brought the scene for physical environs, including suit in name of be Bradshaw particular this assignee railroad as of Brad- inquiry. qualification referred shaw, recovery could be had on the cross-examination, to was elicited on and' Bradshaw action. The railroad cause nothing was there more than an admission that might joined suit Bradshaw might judgment an error of indemnity on in the or con- alternative part accuracy map Tlie was not con- way tribution, litigated and in clusively established; Wolf, upon ex- appeared thereto. This it done. has amining it, in substance that it did not stated a cross-defendant to the suit -appear represent the extent of the curve reim- resist the efforts of the main line of railroad to the south- by way contribution, indemnity bursed leading photographs the trestle. were against in case Bradshaw should recover it. taken at when a later time the obstructions joined In the court below Bradshaw Union passenger to the view the box car and Company, Automobile Insurance as codefend- coach were shown to be the same as liability Baylor, ant with .claiming direct the time of the collision. Wolf testified company the insurance to Bradshaw vir- positions the relative car and box liability policy tue aof insurance issued map photographs coach in the company Baylor. the insurance in favor of the same the time of the company The insurance was dismissed day in cars of the collision two plea abatement, and Bradshaw has cross- presented a continuous obstruction to appealed judgment regard. this traveling highway; the view of one liability company, Since the of the insurance whereas, photographs map showed direct, secondary dependent even is to and gap slight change between them. in the unnecessary Baylor, it that of is to con- degree posi- track and in curve cross-appeal. sider the involved in issues tion of difference cars these make material crossing, judgment distance from The trial court’s favor highway might from which one against Baylor, see Bradshaw favor approaching a main line. railroad, from the south on the Baylor against reversed, clearly Wolf’s suf- here rendered that Bradshaw support his ficient to feet sarily estimate of 75 Baylor, against nothing take and that physical facts did not neces- nothing railroad. take respects In other negative However, we this evidence. trial court’s is affirmed. do not concur statement part, part and in Reversed rendered ques- vital motion that tion of whether detail affirmed. the found Upon Rehearing Appellee sole -bus driver was the the collision. Motion for Wesley Bradshaw. holding contesting motion further contends our that the evidence supports negligent speed could not be finding the railroad *11 cause, rea- contributing proximate for tbe operatives could train son reasonably the'bus have foreseen held of action pursue the course driver would attempting in front negligently cross did of the train. of the train public speed negligence in the fact that train consisted heavily approaching traveled city crossing limits within the demanded This situation Round Rock. train speed operatives reduction such a safety comport those with the as would having highway, in view traveling charge operatives were the train that instrumentality readily not be which could n brought high traveling stop aat when charged in tlipy speed; rate of regulation person ordinarily prudent such care as having exercise, in view the surround- would ing be unrea- It would circumstances. think, sonable, as a matter to conclude ordinary duty care would that such of fact kept within rea- require the train' be operatives within their control sonable one, proper be a If test vision. such line of then it the to the failure to exercise follows that impute imposed care foresight operatives em- contingency with some of a collision brace highway. traveling one foresight should éxtend essential that any particular of circum- combination to stances. not of foreseeableness The doctrine application. thus limited speed stamps This view the continuing proximate cause an active it as one, passive merely a when such and negligence combined highway producing the col- this conclusion is sustained lision. thinkWe by Appeals holding Commission of the recent Joiner, orig- in Valee cited our holding expressly opinion, which inal Supreme approved Court. have, urged points in the motion The other fully orig- think, been considered our we inal opinion. The motion overruled.
Overruled.
TEXAS COTTON CO-OP. ASS’N v. FELTON et al.
No. 4235. Appeals of Texas. of Civil Texarkana.
Court July Sept. 1,
Rehearing Denied