Columbia Engineering International, Ltd. v. Dorman

they do not Consequently, tacts in Texas. here.

control

Accordingly, summary judgment severed,

favor of Fox affirmed and sus- special appearance

R.Civ.P. but the Applied Polymers

tained in favor of is re- against Applied Poly-

versed and the cause

mers is remanded for trial. INTERNA

COLUMBIA ENGINEERING

TIONAL, LTD., Appellant, al., Appellees. M. et

James DORMAN

No. 8324. Texas, Appeals

Court of Civil

Beaumont.

April 1980.

Rehearing May Denied Kirby’s lines across fence and

the extended its property. over

Part M. and March James Dorman On ironworkers, em- W. Walter Blackshear — assisting in the ployees of McBride —were this steel near prefabricated on fence. This steel “hooked” east on it was truck which both ends from the “cherry picker” from a delivered cables (movable) crane or “telescopic” a with crane, operator the Flow- The boom. employee then ers—also a McBride —would it to truck and lower swing steel off the “guid- and Blackshear ground. Dorman end, steel, ed” the one at this apparatus attached to the cable. On (March 1974), the came into crane date line power contact with States’ Gulf 15,000 electricity to flow causing volts Dorman through the and the bodies of cable Blackshear, of whom were horri- and both injured. bly permanently and and A suit resulted in which Dorman Benckenstein, Beaumont, ap- John H. for plaintiffs below. Blackshear were pellant. trial, Black- Shortly, prior to Dorman and Tonahill, Jasper, appellees. Joe H. Kirby, with Gulf shear settled their cases Minnis, four Casey, and United for

DIES, Chief Justice. ($400,000). dollars Suits hundred thousand indemnity flowed be- for contribution and prior to March Sometime and Colum- tween defendants Corporation (hereafter Kirby) Lumber ac- trial, lengthy After a a bia. plant (Evans Co.) quired Highway across percent negligent one hundred (east side) its mill in Silsbee sub- and awarded Dorman and Blackshear place the intention particle to build in the trial damages. Additionally, stantial plant. consulting engineer board respond decreed should court that Columbia plant Engineering Inter- or- indemnity and to their cross-actions national, (hereafter Columbia). The Ltd. make them whole for dered Columbia to general Enterprises, Casey contractor was ($400,000) hundred dollars four thousand (hereafter Casey). Inc. Erec- McBride Steel prior to trial they had in settlement (hereafter Corp. McBride) tion was a sub- It from this and Blackshear. is Dorman fabricating contractor steel. Erec- Minnis perfected ap- has this judgment Columbia Minnis) Corporation (hereafter tion was a re- parties will be peal. clarity, For case subcontractor and dismissed from the by name. opinion generally to in ferred summary judgment. United Fi- States (hereafter United) delity Guaranty Co. trial first Columbia’s “[t]he was intervenor. admitting erred in into evidence Dorman, as- newly of . that he Next the east side fence of the acquired Engineer, property Gulf States Utilities sumed [Columbia’s] (hereafter States) to him Company Gulf owned or someone from Columbia indicated tower, Blackshear, beams high voltage place steel maintained a the fence where the accident oc- wards the Nanny fence.” then came over curred, (Dorman) over objection that told Dorman to move it. He [Columbia’s] highball” hearsay, speculative, gave such evidence was testified Moss “us the means he the dunnage wanted and steel upon not based fact.” (and line). placed next to the fence supervi- Herb Moss was Columbia’s main began working Herbert Moss for Colum- sor engineer on the work site. On bia in June on loan from another com- 4, 1974, March Dorman and Blackshear be- pany. consulting engineer He was a gan unloading dunnage the steel further Kirby].” “had to coordinate the work [at from the fence referred to herein and fur- inspected He the work and then would cer- power ther from the line. Dorman then Kirby tify to the amount of work that (Milton Nanny, Sr.) testified his foreman by would be done each contractor. It was came to him and ordered him to move the Kirby paid on this basis the contractors. (and steel closer to the fence therefore accident, Friday Nanny, before the Sr. power line). refused, Dorman at first but (McBride foreman) asked Moss if he could Sr., Nanny, insisted saying, “Because Mr. unload the steel at the south end of the Moss says going there is to be a little build- answered, blending building. Moss “I told ing going come out here and it’s to be in the objection him I had no to him way.” This evidence did not its pro- derive there, high that steel to watch that bative force competency and cred- power blending line above. . The was, therefore, ibility of Dorman and inad- building seventy feet sixty was or hearsay. missible as the many See authori- (and east fence hence about that much far- ties cited in 24 Tex.Jur.2d Evidence 557 at § line). However, power ther from the Moss (1961); also see 24 Tex.Jur.2d Evidence Nanny going little was to unload “[a] (1961). 560 at 57 § blending building, southwest of the [w]hich However fence”; trial ruled: by would be to which Moss had portion of the is strick objection by Nanny, no when asked He “[T]hat Sr. en,” and “The jury is admonished not to telling Nanny, denied Sr. “where to locate consider it any purposes Nanny Monday,” of what this steel at a fenceline on but he surprised told him that “wasn’t that unloaded it over they Moss said.” “This therefore Sr., Nanny, there.” He didn’t know was cures the error.” 1 C. McCormick & R. and, doing stopped this or he would have Ray, (Texas Texas Law of Evidence 29§ “Yes, sir, authority stop I had the him. 1956). point Practice 2d ed. This is over by Kirby’s .” at- On examination ruled. torney, hazard Moss admitted the would We believe appeal this will be better un- the steel have been the same whether up derstood if we next take Columbia’s Monday Friday or location. unloaded at through points Points 6 11. These contend unloading. Kir- nothing knew findings negligence proximate “as the construction relying on Moss supported cause are Columbia supervisor.” thought Columbia was Moss or insufficient evidence or are with more providing little unfair in not him great weight preponderance of the evi- de-energize this help. He took no action to dence. power represented Kirby line. Columbia We review points guid- these under the dealing insofar as safety was concerned Alviar, ance of Garza v. with the Had he been fur- contractors. (Tex.1965), Estate, King’s and In re “probably” help nished more (1951). 244 S.W.2d 660 He was happened. wouldn’t have Nanny, (his Dorman he asked, “Well, testified saw Sr. joint thing it was a between supervisor) talking. McBride and Moss He you Nanny to unload the [where (on answered, “Well, than dunnage saw Moss in a To this he steel].” placed) asked, which the think the way.” steel was and then He was “do “pointing spot?” ... to move it over to- steel was laid in an unsafe To which charge “was in of all performed. it.” He admit- Moss replied, “no doubt about It was Colum- of the contract.” operations he had the under the contract to ted said, get the witness responsibility, bia’s unloading. direct the site of de-energized protected line Sr., day the accident Nanny, testified the to deal Kirby relied on Columbia shield. the steel was to happened he decided where they did their and see with the contractors stacked, prior “but to that Herb Moss be “did safely properly. work it, myself had talked about and he said general managing.” the construction agreed to it.” [he] the contracts were drawn conditions of super- McBride was to testified Columbia disputes contract If there were Columbia. job. contractors, emergencies vise the so between the stopped the work needed to Both Dorman and Blackshear understood who resolved it. safety, it was Columbia job.” Moss was “over the whole Blackshear by Colum- changes plans All were made had been Moss to previously ordered responsibility to It was Columbia’s bia. move a shack. safety precautions. If McBride or provide Hickman, general Jack Arnold foreman Sr., asking him Nanny, had come to Casey, was asked: “I place, at such and such a unload steel “Q. words, In other was the [Moss] have had to have say they would would supreme decision maker so far as of The coordination seen Herb [Moss].” manner was unloading the work that went on in this the steel in a safe relied on Columbia Columbia’s. project? “A. “Q. “A. All the time I sfc went on the Did that Yes sir. ^[*] go n on from the time job n out there. until ^[*] you ^[*] left? you give any warnings of tified that where crane. Friday, and Blackshear. Richard It was Flowers, power Nanny, the steel was unloaded on the crane line was not Sr., danger to Dorman he said who told operator, tes- over the (the day Monday move the crane on him to “Q. Whatever he all went accident). He not see the cable of the did it? line, only “pop.” heard the contact “A. Yes sir. gave who man on the truck was the one sjs n n 4: # sfc signals. him the Dorman and Blackshear Now, who, “Q. gen- between those two had “Their down and head[s] tail[s] Sr., up” unloading the steel. [Nanny,

tlemen and Moss] making would have the decision au- Dillahunty, an electrical con- James C. thority where to locate that steel? tractor, parties con- was examined con- cerning meaning of the written “A. say would Mr. Moss.” tracts. Sheffield, superintendent Robert Allen referred to in this The two contracts

for Gulf testified he had received no opinion. are to this For attached request de-energize line in following in the observations identification and, made, question, if one had been we have marked them “A” and “B.” de-energized; would have been that such a request proce- provides would have been a “A” that normal We note that contract dure; (Gulf States) frequently Columbia: they

get requests, provide insulating such or to “Complete supervision construction devices. and liaison work with contractors (B.2) sub-contractors.” Walker, manager Harlan resident suppli- work equipment 2. “Liaison Kirby, for the contracted with Columbia de- expediting equipment ers and supervision inspection determining (B.6) liveries.” how and what and what means were em- provisions: ployed getting job completed and “B” has these Contract being County, (Tex.Civ. Engineer [Columbia], 1. “The Jefferson S.W. 148 1897, writ); Inman, App. no and Polk v. interpreter first instance S.W. 261 judge the Contract and the of its — Texarkana writ), propositions parol performance, powers shall use under to show the con evidence is inadmissible per- this Article to enforce faithful a written placed struction to be contract both formance of Contract contract, in the ambiguity where there is no (3a) parties hereto. . . . parties may as and the intent of the 2. “Time of the essence for the Con- therefrom, and, where a written certained any . . ma- tract and if time agreement unambiguous, testimony of chinery equipment explain properly it was expert witness to executing ap- methods of the work with these quarrel We have no excluded. pear Engineer to be unsafe being Texas law. general propositions Engineer may order professor J. Brennan is a of indus- James improve. and direct the Contractor University and a engineering at Lamar trial (3b) . . .’’etc. degree with a in elec- consulting engineer, Engineer ques- 3. “The shall decide on and a Ph. D. in mechani- engineering trical arising tions under the Contract Doc- engineering University cal at Aus- ” (4a) uments. . . he was familiar with the tin. He testified 4. “The under the direction Contractor Kir- type program that went on between responsible Engineer of the shall be building in the by and Columbia .all such an particle plant. He said in board ” (18b) materials. owner undertaking it was common for the Engineer authority 5. The in an has consulting engineer, and that employ to stop progress emergency to of He read he had served in such function. such B, work whenever (of be- 3a Exhibit contract Section stoppage may necessary McBride) be ensure and said that “as Kirby tween and (34a) safety having of life. . been involved in engineer an and construction, paragraph puts the bur- believe the evidence we have We acting in Engineering den on Columbia of sufficiently supports summarized above Kirby’s . He inter- best interest. 1 jury’s Special answers to Issues Nos. and had the preted 3b to mean Columbia (negligence proximate 2 and cause of Co operate safely to ascertain the contractors and, therefore, lumbia) overrule Columbia’s way contracts are “and this is the these through Points Eleven. Six that usually He also testified drawn.” up We now take Columbia’s Points Three gave the contract Colum- paragraph 10a of points urge through Five. These error cer- responsibility to make supervisory bia permitting testimony the trial court in of all laws includ- tain the contracts observed the contract between James Brennan that O.S.H.A.; the contractor violated ing that Kirby placed the burden of Columbia para- that He said certain of these rules. Columbia; safety operations upon allowed made the contrac- graph 18b of the contract interpret Brennan to a written contract engineer re- of tor under the direction rule; parol of evidence that violation supplied. materials sponsible for an qualified Brennan was not to render type the same put on much of Brennan interpretation; and that should Nemeth, vice testimony through Eugene testify permitted not have been Colum- Columbia, an electrical of also president requirements bia violated the of Occu- plans prepared engineer. Columbia Safety Health Administration. pational He was specifications including electrical. Henry Phillips, Columbia cites v. 105 Tex. He Moss arrived. project manager before “Now, 533, (1912); attorney, 538 v. Had 151 S.W. Soel was asked Columbia’s den, 182, 19 (1892); was made be- 1087 Don the contract that 85 S.W. know He . ?” Tindall, (1869); ley v. 32 Tex. 43 Smith v. tween Columbia 207 at 318 Tex.Jur.2d Evidence attorney § court. 23 answered, “Yes, Then his I do.” profes- Lamar (1964). both the understanding We believe asked, your “What properly qualified. Nemeth required Columbia sor and what that contract answered, and it is objection he do?” Over through rate, offered At of his answer interesting part to note that testify to him to permitted Nemeth and interpret people may “. some the Lamar testimony essentially the same intent points differently of it or the certain professor gave. inter- somewhat.” He then of the contract Inc. v. Cooperative, In Medina Electric contracts, B Exhibits A and preted the both (Tex.Civ.App.— Ball, 368 S.W.2d attached, same man- in much the herewith writ), Justice Barrow Antonio San professor the Lamar and sometimes ner as the court wrote: speaking objection. over that the trial is well settled “The rule cross-examination, he was often asked On objec- evidence over court’s admission of interpretative questions concerning Colum- if the ob- to be harmless tion is deemed contracts, objection in the without bia’s role permits simi- subsequently jecting party attorney. At one from Columbia’s ob- introduced without lar evidence to be site, job our man on the his testified: “And [citing jection authorities].” Kirby’s responsibility was to make sure that Fe Blakney Panhandle & Santa And see v. according to our interest was carried out (Tex.Civ. Company, 381 S.W.2d Railway drawings specifications.” He admitted e.), r. writ ref’d n. Paso App. — El assuming Moss was at the accident site com not heard to party could dangerous he would see that it’s “and speed as to testimony plain appeal duty operation; yes, he would have to a colli immediately prior an automobile electricity] shut it off.” He based this [the sion, intro substantially same as evidence Casey’s attorney per- on the contract. himself; again, duced about interpretive questions mitted to ask as, and cumulative of substantially same objection. the contract without not have caused testimony, could Ray, In 2 Law C. McCormick & R. Texas in the improper rendition of (Texas Practice 2d ed. Evidence § also, 434); see (citing Tex.R.Civ.P. case 1956), we find: Ma Diesel & Industrial Capital Simmons pur- strictly “Evidence offered Works, chine 380 S.W.2d pose of a aiding in the construction 1964, e.). writ ref’d n. r. —Amarillo pro- written instrument is not within course, ordinarily es- “And, party is hibition of the Parol Evidence Rule.” complain presented of evidence topped professor The of both the Lamar previ- has adversary his if he himself really and Columbia’s Nemeth did not at- the samé evidence ously introduced tempt vary the terms of the contract but a similar character.” evidence of meanings give understanding Evidence 208 at 320-1 23 Tex.Jur.2d § used, permissible. of the words which is held evi- (1964). character” Columbia’s “similar 542, Id. 1687 at § subsequent professor’s, dence was v. Company In Missouri Pacific Railroad the same. the rule would be believe Brothers, 241, 242 Trautman 301 S.W.2d professor’s As stated earlier herein 1957, writ Antonio — San objection through evidence came in without e.), Pope speaking ref’d n. r. Justice for the Company v. Nemeth. Esteve Cotton See court said: 145, Hancock, 539 S.W.2d 159 explanation interpretations (Tex.Civ.App.—Amarillo “The 1976, e.). writ ref’d n. r. reports of the terms used in the will not order appellate court “[T]he evidence, proper were in were matters for of im- the admission reversal because of expert opinion.” to when testi- objected proper testimony permitted effect question qualification mony The to the same objection. expert generally without witness is 78 Palmo,

Slayden v. 108 Craycroft. 194 Deal trial, S.W. plaintiffs Before (1917). Craycroft him; settled with and dismissed plaintiffs joined later Deal Companies. Columbia’s Points Three through Plaintiffs settled with the latter and dis- Five are overruled. missed it before trial. When the case went * Part II to trial the only parties plain- active were tiffs and defendant Deal. Columbia’s Twelfth Point is: “The trial percent Craycroft neg- applying erred in not the credit rule ligent; Companies percent; Deal Travel- reducing judgment against appel- percent; percent; ers 20 Deal 45 and that lant, Columbia, $400,000 the amount of —in plaintiffs’ $444,999. damages were Plain- the voluntary payment by appellees made already tiffs had received settlements from to Dorman and Blaekshear.” The Four- Travelers, Craycroft, and Companies Deal teenth Point is the same. in excess of this sum. Columbia cites the recent case of Deal v. Plaintiffs judgment against moved for Madison, 576 (Tex.Civ.App.— S.W.2d 409 Deal jury; urged for the award of the Deal e.). Dallas writ ref’d n. r. plaintiffs had obtained full satisfaction There surviving husband and arguing plaintiffs the settlements in effect Betty children of Madison who died in an nothing. should take fire, apartment house first sued Travelers agreeing In with the defendant the court Insurance Later Company. Travelers filed Gettegno v. The Pari carefully analyzed Deal, party against a third claim the land- sian, (Tex.Com.App.1932, owner, Craycroft, the architect who holding approved); Baylor Bradshaw v. designed apartments. The trial court University, 84 S.W.2d 703 126 Tex. party severed the third claim. After sever- Contractors, (1935); Inc. and Palestine v. ance, plaintiffs made a settlement with Perkins, (Tex.1964). 386 S.W.2d 764 $450,000. Travelers for Plaintiffs released Madison, The court concluded in Deal assigned Travelers and also Travelers an supra at 414: interest in their claims Deal and Craycroft “These .the so that the net amount of decisions had established recovery prorated concerning claims substantive law the effect of those should be settlement than all tortfeasors two-thirds to Travelers and one-third to less negligence was intro- comparative before plaintiffs until Travelers should receive Payment duced 2212a in 1973. $300,000. article agreed proceed Plaintiffs also pro- reduced tortfeasor prosecution within a reasonable time with damages for which the portionately the Craycroft, of their Deal and claims liable, and since remaining tortfeasor was agreed party and Travelers that its third to but one sat- the claimant was entitled merged action should be with the claims damages, remaining isfaction of his by plaintiffs. asserted Plaintiffs inter- aggre- entitled to have tortfeasor was action, party vened in the severed third gate amount of the settlements credited redesignated parties the court —Madi- recovery was damages, on the so that Craycroft sons as Deal and as any event to the excess of the limited in contending defendants. Deal answered the court or damages as found plaintiffs fully compensated had been for settlements, and over the amount of the damages and that under Tex.Rev.Civ. no more damages if the were found to be (Vernon Supp.1978) 2212a Stat.Ann. art. received, already than no fur- the amount previous was entitled to full credit for ther recovery permitted.” settlements. art. Tex.Rev.Civ.Stat.Ann. its The intent of Travelers had dismissed Meanwhile (Vernon Supp.1978), the indemnity against 2212a § claim for contribution * II, having gained support This not of a Part majority court, is filed as a dissent. encouragement of settlements is (Id. 416), “The apply at “is to the scheme must be considered negligence require con- the final factor which

comparative so as to any plaintiff proportion each defendant in in this case. Whether tribution from ultimately found him, to to rath- of the defendants are negligence to the attributable settlement, we favorable require equal er than to an contribution have made a nature of the tortfeasor, aleatory formerly required ‘respect as will from Doyle .’ process. the in- settlement permit article but still to 701, 711 n. 5 States, F.Supp. of his jured party only one satisfaction United were allowed to (D.S.C.1977). If Dresser (Emphasis damages.” supplied.) it recovery Leger’s reduce And, (Id. 420): the court held at settlement, Dress- Leger’s dollar value of “[Tjherefore, non-settling a tortfeasor pay portion a small er would be left to paid entitled to deduct amount in $182,- ($284,090.00 damages minus total damages settlement from the amount of $99,400 plain- minus for 331.05 settlement Rather, we jury. negligence equals contributory tiff’s (d) giving interpret subdivision full damages even $2,358.95) of the total effect to the Bradshaw rule in the con- was the main con- though negligence its comparative negligence, text of so that Thus, causing them. in tributing factor remaining permitted defendants are substantially benefit Dresser would to share the credit for the settlement in or miscalculation in re- intransigence proportion respective percentages to their to the case. We refuse fusing to settle therefore, negligence, and, propor- in a which would reward adopt approach (Em- respective tion to their liabilities.” refusing to settle. If defendant phasis supplied). case, it must be party try decides to Clearly application this case has no accept whatever benefits or prepared to instant case because the jury found Colum- from its decision.” burdens flow percent negligent. bia 100 now dis- points overrule the would Company, In T. L. James Inc. v. cussed, the court has majority but the Statham, (Tex.1977) (also attached con- determined otherwise Columbia), plaintiff relied on sued a milk curring opinion. producers employee, association and its Part III alleging plaintiff’s pickup the latter struck Point contends Columbia’s Thirteenth rear, judgment, recovered a ordering appellant “The trial court erred registry into the of the court. $200,000, $100,000 Gulf pay Kirby to highway later Plaintiff sued contractor $25,000. ...” McBride failing flagman station a to warn to approaching vehicles from the rear of art. 2212a Tex.Rev.Civ.Stat.Ann. stopped deny- in front of them. In traffic (Vernon Supp.1978) provide does not suit, (Id. ing the second the court said at situation, we have found no au this 868): Nevertheless, subject. thority on this [plaintiff] could have

“Statham require Columbia inequitable seems to us to brought jointly [against suit both defend- nothing it had pay for the settlements No He did not do so. with, advantage from. gained ants]. do addressing ques- issue was submitted therefore, We, and affirm sustain comparative negligence tion of . .” judgment court’s portion of the trial Columbia, plaintiffs

favor of portion reverse and render We have no such situation in the case repay requiring Columbia Dube, Clemtex, review. also Ltd. v. See settling the defendants. 578 S.W.2d 813 — Beaumont r.e.). writ ref 'd n. court will be as judgment of the The the con- Control, Inc., “conclusion” of Drilling announced in the Leger In Well (5th 1979), curring opinion. 592 F.2d 1246 Cir. we find: KEITH, Justice, jury percentage the fixed the concurring. opinion, his of hun- negligence against Columbia as one concur in the of the Chief We percent. dred foregoing III the Justice in Parts I and with Part II opinion. agree objections, We do not the trial Over Columbia’s therefore, concurrence, respective the judgment and this will court entered thereof amounts found majority opinion plaintiffs precise controlling the as discussed; and, their total jury compensation as herein to matters damages and refused to allow credit are authorized to state that the Chief Jus- $400,000 plaintiffs which the had al designates opinion his as his tice Part II of settling defend ready received from dissent this cause. Thus, plaintiff recovered ants. while each agree We do not to an affirmation of a jury amount judgment for the total judgment plaintiff awarded each a which plaintiff has damages, as each fixed his jury than the fifth of a million dollars more $200,000which he had received retained the jury The found him to be entitled.1 settling defendants. This chart No. 3 that Dor- Special in answer to Issue reflects the true facts: $840,421.86and damage man’s amounted to Recovery: Dorman’s judg- in the precise sum was set forth ment Columbia.2 In he recovered 840,421.86 damages: Jury $ verdict for total Special to Issue No. answer 200,000.00 settling paid by defendants: Cash damage totaled the found that Blackshear’s $1,040,421.86 recovery: Total Recovery: $715,507.25 Blackshear’s was set forth in sum of which judgment against his Columbia. 715,507.25 damages: Jury $ verdict for total 200,000.00 paid settling defendants: Cash plaintiffs' brief: As stated in 915,507.25 recovery: $ Total Minnis, “Kirby, Casey, Gulf payment to voluntary McBride made a Moreover, court ordered Colum- the trial for two hundred Dorman and Blaekshear bia, judgment, pay to the several ($200,000.00) prior dollars each thousand their settling the amount of defendants to trial and filed and their cross- reserved plaintiffs. The net contributions to the two for contribution actions permit was to rulings effect of these two 2212a, indemnity pursuant to Article windfall excess plaintiff keep his (emphasis supplied)3 V.A.C.S.” $200,000 required Columbia damages of defendants for make whole the by the trial Motions in limine sustained plaintiffs’ voluntary contributions prevented making from of the settlements. Part III jury. such fact known to Court the latter Justice, has rectified supra, Chief jury only question to the submitted comment not further aberration and we do negligence applicable plaintiffs, to the point. on the Columbia, No Kirby. submission was of the authori- as to the named defendants. a few quote made other We now which upon Justice in Part II of tative of our courts As noted the Chief decisions instance, compensa- subrogated damage and Black- 1.The issues as to Dorman In each separately ques- payments but the which shear were submitted awarded its tion insurer was propounded tion was the same in each in- in the the sums awarded were deducted from money, any, pursuant if if stance: “What sum of to Dorman and Blaekshear cash, you preponderance now in do find from a subrogation provisions of the Worker’s fairly reasonably of the evidence would compensate Compensation Act. for his [Dorman Blaekshear] injuries, any, prepon- if find from a $400,000, equally payment be- 3. The divided derance of the evidence resulted from the oc- up was made con- tween the two question?” currence in This was followed Kirby $200,000; as follows: Gulf tributions — listing damage of seven elements of authorized $100,000; Casey $45,000; Minnis— States — — instance, jury, for consideration and the placed in each $25,000. $30,000; and McBride— monetary figure opposite such ele- damage. ment

81 persuasive, pertinent, apposite. It rely confining plaintiff’s in each recov- either we jurisdiction whose by jury: the is a case from another ery damages to the total fixed The case controlling. holdings are not v. (1) Justice Hickman in Bradshaw Chief general Act “and arose under the Jones 99, University, 126 Tex. 84 S.W.2d Baylor in a fed- law” which was decided maritime 703, (1935): 705 and the did eral court in Louisiana general acceptation “It is a rule any Texas touch, tangentially, not even injured party to but one is entitled doctrine set out If such a cases or statutes. by injuries satisfaction for the sustained law, into Texas imported Leger in is to be being inju- . . There one him. . our legislature the should be done can, ry, justice, there be but one satis- ” Supreme Court. injury. faction for that . (2) Chief Justice Greenhill in Palestine Conclusion Contractors, Perkins, 764, Inc. v. 386 S.W.2d judgment of the trial Consequently, the (Tex.1964): 766 and Black- which awarded Dorman “Perkins relies on a number of Texas the precise sums shear cases which state the rule that the non- 4, respective- Issues 3 and Special answer to settling tortfeasor entitled to credit on is plaintiff reduced as to each ly, is now judgment already for the amount $200,000 plaintiff sum of ” paid for the covenant not to sue. defendants; and, settling from the received reformed, judgment as to the said (3) Pope Mr. Justice in McMillen v. Klin affirmed; portion plaintiffs is now 193, gensmith, (Tex.1971): 467 S.W.2d subrogat- judgment which awarded do, preserve “In as we carrier compensation insurance ed worker’s rule that a claimant in no event will be (and attorneys) portion of the sum entitled to than the amount recover more affirmed; is plaintiff awarded to each required for full satisfaction of his dam- portion judgment which ordered Co- ages. settling defendants the pay lumbia to to the which said defendants had (4) amount Mr. Justice Steakley in T. L. James ren- plaintiffs is reversed and Statham, Company, Inc. v. 558 S.W.2d ' 865, settling defendants denying dered (Tex.1977): recovery against Columbia. “We adhere to the rule stated in [Brad- shaw, supra] explicitly reaffirmed in Tex.R. provisions Pursuant [McMillin, supra], that a claimant in no 448, apparent from this Civ.P. for reasons event will be entitled to recover more of the costs in concurring opinion, one-third required than the amount for full satis- is assessed courts damages.” faction of his said costs jointly severally; one-third of adjudged against defendants Many other authorities could be cited but 3, (as supra), jointly and set out in footnote to do would so belabor a well settled and, costs is severally; one-third of said Supreme our own Court.4 Even Deal v. adjudged against Columbia. Madison, 409, (Tex.Civ. 419-420 App. n.r.e.), writ ref’d relied and affirmed part, Affirmed in modified — Dallas Justice, upon by the is in Chief accord and rendered. part, part and in reversed expressed the views in the Bradshaw and It is so ordered. cases cited Statham above. Justice, CLAYTON, concurs. Leger Drilling We do v. Well not consider Control, Inc., 1979), opinion. (5th join concurring 592 F.2d 1246 in this Cir. See, (1979), (Second), 885(3) g., McCrary Taylor, 2d § e. 579 S.W.2d statement Torts v. Giesecke, (Tex.Civ.App. Schering Corp. 589 S.W.2d writ ref'd n. and 516, — Eastland e.), quoting foregoing writ r. line of cases — Eastland and, additionally, citing quoting pending), from Re and authorities therein cited.

Case Details

Case Name: Columbia Engineering International, Ltd. v. Dorman

Court Name: Court of Appeals of Texas

Date Published: Apr 17, 1980

Citation: 602 S.W.2d 72

Docket Number: 8324

Court Abbreviation: Tex. App.