Missouri, Kansas & Texas Railway Co. v. Enos
50 S.W. 928
Tex.
1899
Check Treatment
DENMAN, Associate Justice.

H. B. Enos sued the Missouri,. Kansas & Texas Railway Company of Texas and the Ft. Worth & Hew Orleans Railway Company to recover damages for personal injuries to his wife suffered in a collision of trains of defendants, charged to have resulted from the negligence of each and from the gross negligence of the servants and employes of the latter company, on whose train his wife was a passenger. Plaintiff recovered verdict and judgment, joint in form, against both of the defendants, for $4000 actual damages and costs of suit, and also recovered verdict and judgment for $1000 exemplary damages against the latter company. The defendants, having answered separately, filed separate appeal bonds and separate assignments of error. The Court of Civil Appeals sustained some'of the errors of law assigned by the Ft. Worth & Hew Orleans Railway Company, but did not sustain any of the errors assigned by the Missouri, Kansas & Texas Railway Company of Texas, and thereupon reversed and remanded the cause as to the Ft. Worth & Hew Orleans Railway Company and affirmed the judgment as to the Missouri, Kansas and Texas Railway Company of Texas. From this judgment of affirmance the Missouri, Kansas & Texas Railway Company of Texas has brought the cause to this court upon a writ of error.

Being of opinion that the Court of Civil Appeals correctly disposed of the only assignment of error made by this company in that court, we do not deem it necessary to discuss the question.

The Missouri, Kansas & Texas Railway Company of Texas urges here that the Court of Civil Appeals erred in affirming the judgment against *580 it after reversing and remanding as to its codefendant, the verdict and judgment for actual damages being joint in form.

In Hamilton v. Prescott, 73 Texas, 565, this court, speaking through • its present Chief Justice, said: “We think the conclusion to be deduced from these apparently conflicting cases is, that this court, when it finds error in the proceedings of the lower court as to any party to the judgment and not as to another, and that a proper decision of the case as to une is not dependent upon the judgment as. to the other, will reverse in part and affirm in part. But where the rights of one party are dependent in any manner upon those of another, it will treat the judgment us an entirety, and where a reversal is required as to one, it will reverse the judgment as a whole. * * * That a judgment against two or more parties which is appealed from by one may be reversed as to the une and affirmed as to the others, or may be reversed as a whole, according to the manifest justice of the case, we think the cases cited sufficiently show.” Hnder the rule thus stated, we think it is within the discretion of the Court of Civil Appeals in a proper case to affirm in part ■and reverse in part. Miller v. Sullivan, 89 Texas, 480; Boone v. Hulsey, 71 Texas, 176; Giddings v. Baker, 80 Texas, 308; Schuster v. Bauman Jewelry Co., 79 Texas, 179. Hpon an examination of the whole record we do not think plaintiff in error has shown an abuse of that discretion. The Court of Civil Appeals have simply severed the causes of action by affirming as to one and reversing as to the other of two joint tort feasors who might have been sued separately. If, under the facts, plaintiff in error be entitled to contribution, as contended, against its former codefendamt, it made no such claim in its pleadings, and the action of the Court of Civil Appeals will not preclude it from suing therefor.

We are of opinion that upon reversing as to the Ft. Worth & New Orleans Railway Company, thereby severing the causes, the Missouri, Kansas & Texas Railway Company of Texas should have been relieved of that part of the judgment below for costs incurred in prosecuting the suit against the former company, and its assignment questioning the action of the Court of Civil Appeals in refusing to do so on its motion for rehearing will be sustained, and the trial court will be ordered on return of the mandate to not tax such costs against plaintiff in error. Miller v. Sullivan, 89 Texas, 480. In other respects the judgment of the Court of Civil Appeals will be affirmed.

Affirmed except as to costs.