author: NYE, Justice. SHARPE, Justice

text:
    John P. MARANGE and wife, Pauline Marange, Appellants, v. John MARSHALL, Appellee.
    No. 134.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 31, 1966.
    Rehearing Denied April 28, 1966.

      Edwards & DeAnda by James DeAnda, Corpus Christi, for appellants.
    Lewright, Dyer & Redford by J. M. Burnett, Corpus Christi, for appellee.
   NYE, Justice.

This is an appeal from a judgment rendered in the district court of Nueces County, which sustained a motion filed by defendant for summary judgment. Plaintiffs have perfected their appeal to this court.

The facts, stipulated to by the parties, show that in this case appellants, John P. Marange and wife, Pauline Marange, brought suit for damages against John Marshall for personal injuries sustained by Mrs. Marange, when a car in which she was riding with her husband, John P. Marange as driver, was in a collision with a pick-up truck driven by Marshall. Marshall was operating the pick-up truck in the usual course of his employment as an employee of Lew Williams Chevrolet, Inc.

It appears that the present action was brought against Marshall only, with alie-gations of negligence of Marshall being duly set forth. The date of the collision was July 31,1961, in Corpus Christi, Nueces County, Texas.

Prior to the filing of this suit, appellants, again as plaintiffs, had instituted a suit under the doctrine of respondeat superior against appellee’s employer, Lew Williams Chevrolet, Inc., based on the same accident. This first suit had gone to trial before a jury, and as a result of the verdict, judgment was rendered for the plaintiffs, appellants here, for the damages found. Plaintiffs appealed; however, the judgment was affirmed. Marange v. Lew Williams Chevrolet, Inc., 371 S.W.2d 900, Tex.Civ.App., 1963, ref. n. r. e. The full amount of the judgment was paid into the registry of the court and was also tendered in cash to them, but was refused by the appellants. This suit against the employer’s servant followed.

The motion for summary judgment was predicated on the proposition that a final judgment in the appellants’ favor in the prior suit against the appellee’s employer based as was this suit on the negligence of appellee Marshall, and on the doctrine of respondeat superior and arising from the same transaction, was a complete defense to the present case.

In other words, appellee contended in the district court and in defense of this appeal that the prior action pursued by appellants to final judgment after a verdict, in the sum of $3,250.00 and affirmed on appeal, completely bars the second action against the employee, Marshall, appellee herein, notwithstanding the judgment amount and interest being both tendered to the appellants and paid into court, was not accepted by the appellants. We agree.

It appears by the admission of counsel for both parties that the precise question has not been decided by the Texas courts, and our own search of the authorities among the Texas decisions does not disclose a determination has ever been made in this jurisdiction. In fact, the briefs of diligent counsel disclose but few decided cases even from other courts than in Texas where the courts have been called upon to determine the issue presented here.

The single problem in this appeal seems to raise a number of questions, all related to its final disposition.

1) Does the prior case present a situation where the rule of res judicata must apply to bar the second or present action?
2) Is there an estoppel by the prior judgment that should dictate affirmance of the trial court’s ruling on the motion for summary judgment?
3) Was there a binding election by the appellants as to parties defendant in the prior action, that precludes a later suit by the same plaintiffs wherein only the employee is named as party defendant ?
4) Is there a public policy that forbids a second trial of the issues as to negligence of the employee Marhall, absent contributory negligence?
5) Do the rules relating to the cause of action against joint and several tort feasors apply in the relationships incident to the doctrine of respondeat superior?
6) Have the appellants had their day in court in the prior action ?

Consideration of such questions seems to merge into a single question: Does the pri- or action pursued to judgment, with the full amount of the judgment tendered and paid into court although not accepted, bar the present action ?

Here we have a case with facts undisputed that must be decided upon the well known doctrine of respondeat superior. In Texas, as in most states, appellants could have sued jointly in the prior case, both the master and the servant. The doctrine of respondeat superior presupposes that the employer is responsible for the acts of his employee, acting in the scope of his employment, where negligence of the employee is shown to have been the proximate cause of the occurrence. Judgment is allowed against the employer, not because of an overt negligent act of the employer because he committed no wrongful act, but because of a recognized legal fiction, “ * * * Let the principal or master answer * * * ” “Let the superior respond * * * ”. The principal is liable for the act of his servant or agent performed within the scope of his employment. It is derivative liability. The employer and employee composed one entity, for one wrongful act causing injury to one person, usually on one date in one episode.

“ * * * where one acts through the agency of another, then, in legal contemplation, he is himself acting so as to make him responsible for the acts of his agent.” Gatz v. Smith, 205 S.W.2d 616, 617, Tex.Civ.App.1947, ref.

The history of the development of the doctrine is too well known and recognized to justify citation. Students may refresh the history and the development of the doctrine in the writings of legal scholars, e. g., Oliver Wendell Holmes, Jr., late Justice of the Supreme Court of the United States. He said:

“A baker’s man, while driving his master’s cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted, and it is said that there ought to be a remedy against some one who can pay the damages, or that such wrongful acts as by ordinary human laws are likely to happen in the course of the service are imputable to the service.” The Common Law by Oliver Wendell Holmes, Jr., 49th Printing, “Early Forms of Liability” page 6, permission granted by publisher.

Justice Holmes pointed out that certain customs, beliefs or needs of a primitive kind establish a rule or a formula. However, in the course of centuries the custom, belief or necessity disappears but the rule remains, although the reason which gave rise to the rule has been forgotten. Today the doctrine seems to have its origin in, and is dictated by,

“considerations of public policy and the necessity for holding a responsible person liable for the acts done by others in the prosecution of his business, and it is bottomed on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it, and also on the principle that a duty rests on every man, in the management of his own affairs, whether by himself or by his agents or servants, so to conduct them as not to injure another, and that, if he fails in that duty and another is thereby injured, he shall answer for the damage.” 77 C.J. S. Respondeat Superior, p. 318.

John P. Marange, the appellant herein, invoked the doctrine of respondeat superior in the first suit that permitted him to recover a judgment against appellee’s employer Lew Williams Chevrolet, Inc., based upon the negligent conduct of the appellee herein.

Appellee contends the appellants are barred by the rule of res judicata. Judicial definition of the rule refreshes and sheds light on its application.

The general principle, announced in numerous cases, is that a right, question, or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense cannot be disputed in a subsequent suit between the same parties or their privies, or with another so identified in interest with such person that he represents the same legal right, the same question, the same particular controversy or issue which has been necessarily tried and finally determined upon its merits by a court of competent jurisdiction in a judgment in personam in a former suit. United States v. California Bridge & Construction Co., 245 U.S. 337, 38 S.Ct. 91, 62 L.Ed. 332. See Edinburg Irr. Co. v. Ledbetter, 247 S.W. 335, Tex.Civ.App.1922, modified on other points, 286 S. W. 185, Tex.Comm.App.1926, quoting from Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355 (1897).

Speaking of the effect and meaning of the rule of res judicata the Supreme Court said, in Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930) reversing Tex.Civ.App., 285 S.W. 927:

“It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * * ” (Emphasis ours.)

In 38 Tek.Jur.2d § 240, page 491, it is stated:

“Every act of negligence and trespass committed by a servant while acting within the scope of his employment and in furtherance of the master’s business is chargeable and imputed to the master and in fact is the act of the master.”

In the case of Canin v. Kesse, 20 N.J.Misc. 371, 28 A.2d 68, wherein the court was called upon to determine whether a plaintiff, who first brings an action against the master for the negligent act of the servant and fails on the merits may bring a second action against the servant for the same negligent act, the court concluded that the plaintiff may proceed against either one or both. He may recover from only one. By whichever path he elects to travel the issues which he must meet are the same. If the plaintiff recovers it is either based upon the negligence of the servant and the plaintiff’s own freedom from contributory negligence or if the suit is against the master, liability would be purely of a derivative or a secondary character on the theory of respondeat superior. The Court said:

“In the case of Wolf v. Kenyon, 242 App.Div. 116, 273 N.Y.S. 170, 171, a case identical in facts to the one at Bar, the Court said: ‘The prior judgment is a bar to subsequent litigation of the same matters between the same parties or their privies. “What is a privity? As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the the same right of property.” Bigelow v. Old Dominion Copper Mining and Smelting Co., 225 U.S. 111, 128, 32 S.Ct. 641, 643, 56 L.Ed. 1009, Ann.Cas.1913E, 875. Strictly speaking, master and servant are not in privity, but, where the relationship is undisputed and the action is purely derivative and dependent entirely upon the doctrine of respondeat superior, it constitutes an exception to the general rule. Nor does the lack of mutuality affect the exception.
“ ‘ “It is a principle of general elementary law that the estoppel of a judgment must be mutual * * ’ ”

The appellee was not a party in haec verba in the prior case, but in accordance with these and many other authorities, he was in actuality as though he was a party defendant in the prior action. It was his negligence that supported the jury verdict in the prior action. We therefore conclude that res judicata urged in the court below was a part of the structure of the bar that protects the appellee in this appeal, similar in effect to the rule of estoppel by judgment. Technical discussion of estoppel by judgment merges into the rule of res judi-cata and, in the interest of brevity, we only pause to observe that in our opinion the prior judgment, * * * where the relationship was undisputed and the action was purely derivative and entirely dependent upon the doctrine of respondeat superior, * * * estops the appellants from urging their case in a second time by the pretext of avoiding the rule by naming an adventitious different defendant, whose negligence proved and supported the prior judgment.

“The doctrine of res adjudícala or estop-pel by judgment operates to preclude a litigant from raising an issue which has been previously raised and decided against him in a suit between the same parties by a court of competent jurisdiction.” Baronian v. Sealy Oil Mill & Mfg. Co., 9 S.W.2d 292, Tex.Civ.App.1928, writ dismissed, citing Old River Rice Irr. Co. v. Stubbs, Tex.Civ.App., 168 S.W. 28. (Emphasis ours.)

Was there a binding election by the appellants when they brought the prior action, that bars them from making a further election as to parties defendant? When the prior action was filed, appellants had their choice of parties defendant, the employer, the employee, or both. Since, however, both were in privity, to the extent stated above, their selection in the prior action was both binding and exclusive, when once made and final judgment obtained and satisfaction legally tendered. It was optional with them which one, or the other, or both, but did not operate to reserve to them a future action as to the one not first selected as party defendant under these facts. McNamara v. Chapman, 1923, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188. Public policy supports the reasoning of the several rules of law, that the prior action in this case bars the second action. Public policy demands that this be so, because it is only fair and right and just, and avoids a multiplicity of suits. Were it otherwise, the courts could be cluttered with retrials and there would be no finality to litigation. When a rule of law appears to exemplify public policy it is the duty of the court to preserve and express it.

“Arbitrary rules which were originally well founded have thus been made to yield to changed conditions, and underlying principles are applied to existing methods of doing business. The tendencies in most of the American courts are in the same direction.” Anchor Electric Co. v. Hawkes, 171 Mass. 101, 104, SO N.E. 509, 511, 41 L.R.A. 189, cited with approval by former Justice of the United States Supreme Court, Benjamin N. Cardozo in “The Nature of The Judicial Process.” The eminent jurist concludes that:
“The field is one where the law is yet in the making or better perhaps in the re-making. We cannot doubt that its new form will bear on impress of social needs and values which are emerging even now to recognition and to power.”

We doubt not that the courts of Texas many times have thus confirmed or reconfirmed such public policy.

Much of the position of the appellants in this case is based upon the untenable assumption that here the employer, and the employee Marshall, were joint tort feasors, and that for such reason, the appellants may pursue them one at a time, if need be, until they have urged their case separately against all such so-called tort feasors. This theory can have no legal recognition in the doctrine of respondeat superior and is rejected.

As we have seen, all parties agree that the prior suit was brought under the doctrine of respondeat superior. Appellants contend that they may pursue their cause of action against one joint feasor, although they have an unsatisfied judgment against the other tort feasor. While there no doubt are decisions of other states that loosely, perhaps speak of master and servant as joint tort feasors, we do not believe the Texas courts have ever taken such position and we reject it as determinative in this case. In 55 Tex.Jur.2d, p. 636, it is said:

“Two or more persons become joint tortfeasors when they participate in concerted action to commit a common tort and accomplish their purpose.”

In respondeat superior there is one entity, one “person”, although several people might be involved, but master and servant constitute one and the same, with derivative relationship. As was stated in Bowles v. Creason, 159 Or. 129, 78 P.2d 324, at 336:

“The principle of law known as ‘re-spondeat superior’ is a means whereby one person may be liable for another’s tort even though the two were not joint feasors.”

To sustain appellants’ position and to permit them to bring a second suit against the master’s subordinate would in effect permit them to have “two days in court”. In the first suit a reading of the opinion by Justice Barrow, 371 S.W.2d 900, Marange v. Lew Williams Chevrolet, Inc., there is no doubt in our minds that the appellants have had their day in court.

“It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, * * 25A C.J.S. p. 476 “Day in Court”.

In fact, it is well that we recall the possible origin of the maxim, as did the court in In Re Cumberland Power Co., 147 Tenn. 504, 249 S.W. 818, 821, 147 Tenn. 504, 25A C.J.S. p. 476, Note 50(4):

“It is fundamental that every man have his ‘day in court/ and we have no doubt that an appropriate procedure exists, for, as quaintly observed by an ancient English judge, in the case of Rex v. Mayor of Oxford, Palmer, 453: ‘The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam, before he was called upon to make his defense. “Adam,” says God, “where art thou? * * * Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?” And the same question was put to Eve also.’ ”

See also 16A C.J.S. Constitutional Law § 569(4), at page 571, § 709 a, pages 1210, 1211, and § 567 b, p. 541. See Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952). Indeed, we pause to affirm such a right, but this does not extend itself to mean two days, or two half days. The appellants had their “day in court” in the former trial, which involved the same accident, the same acts of negligence, the same injuries, the same damages, and actually the same tort feasor appellee Marshall, who had been called to the witness stand by appellants as an adverse party.

But for the question herein decided that does not appear to have engaged the attention of the Texas courts heretofore, we might bruskly turn aside and reject the position taken by the appellants. In a well and carefully prepared opinion with facts almost identical to the case at bar, the New Hampshire Supreme Court in the case of McNamara v. Chapman, supra, firmly and in thoughtful and well-reasoned language, rejects a similar position taken by the appellants here. The court in McNamara held, that the second action filed against the employee alone could not be maintained, by reason of the prior judgment. This decision as a leading case is reported in 123 A. 229, 31 A.L.R. 188, and has been cited with approval at least in ten states.

The appellants elected to treat the master and servant as one and recovered a judgment from the master, full payment of which has been duly and legally tendered them, and refused by them. They could have disregarded the relationship and sought recovery from the servant. They could have treated the servant’s act as that of the master. But having so elected, with knowledge of the facts, they cannot proceed to judgment a second time. It is our view that the prior action bars the subsequent action against the appellee. The decision of the trial court granting the motion for summary judgment should be and is affirmed.

Affirmed.

SHARPE, Justice

(concurring).

ON MOTION FOR REHEARING

I concur in affirmance of the judgment for the reasons stated in this opinion. In my view, some of the contentions of the parties merit additional consideration and discussion.

The question for decision is as follows: May appellants maintain a second action against the servant for the same injuries resulting from the same collision after they have successfully prosecuted the same cause of action against the master based upon re-spondeat superior and have recovered a final judgment in the former action, the full payment of which has been legally tendered to appellants but refused by them ?

I believe that such question is correctly answered in the negative. I base my af-firmance of the judgment solely on the grounds that appellants have made an election of remedies which the record establishes to have been completed and that, in effect, there has been legal satisfaction of appellants’ judgment against the master. Appellants elected to first pursue their cause of action against the master. They have obtained a final judgment for their damages and could have full payment thereof. I believe that a collectible judgment in this situation completes the election made by appellants and bars a second suit against the servant. This appears to me to be the basic and controlling holding in the case of McNamara v. Chapman, 1923, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188, which I believe to be highly persuasive on the question presented here, which has not been squarely decided by our Texas Courts.

One of the most significant factors here is that appellants have recovered a collectible judgment. In the case of Granquist v. Crystal Springs Lumber Co., 1941, 190 Miss. 572, 1 So.2d 216, the court placed emphasis upon such factor and cited McNamara with approval in holding that a collectible prior judgment against the servant bars a second suit against the master for the identical injury.

However, if the record did not show that appellants had reduced their cause of action to a collectible judgment, I would hold that the second action against the servant is not barred. In my view, a plaintiff is not finally bound by an uncollectible judgment against the master, but may, in such event, pursue his cause of action against the servant who is also liable to him-. The plaintiff’s election to first recover judgment against the master is not complete until satisfaction or its equivalent is had. But where, as here, full payment of the judgment in the prior action has been legally tendered, I would hold that the remedy elected by appellants has been completed and satisfaction has been had so as to bar the second suit against the servant.

I agree with appellee’s position that here the master and servant are not joint tort-feasors. It is important to observe the distinction between persons who are true joint tort-feasors, on the one hand, ajid those who may be held liable jointly or severally under the doctrine of respondeat superior, on the other. Where, as here, the master has not independently participated in the tort, he is liable only derivatively while the servant is liable directly to the plaintiffs. The liability of the master for the tort of the servant is not a contested issue in this case.

Appellants cite as the Texas cases most analogous to the instant suit Pearson v. Jacobs, Tex.Civ.App., 293 S.W.2d 543 (1956, wr. ref., n. r. e.) and Hunt v. Ziegler, Tex.Civ.App., 271 S.W. 936 (1925, affirmed Tex.Com.App., 280 S.W. 546, 1926). In Pearson v. Jacobs, supra, the plaintiff filed a second suit against the servant after first having recovered judgment and payment thereof from the master. The trial court dismissed the second suit against the servant after ascertaining that the first judgment had been paid. The Court of Civil Appeals affirmed on three grounds: (1) That where there has been a judgment against one of two or more joint tort-feasors, followed by an acceptance of satisfaction, all other tort-feasors are thereby released, and the judgment and satisfaction may be successfully pleaded by them to the maintenance of the same or another suit by the same plaintiff involving the same cause of action, citing Hunt v. Ziegler, supra; (2) That since the second suit was solely for exemplary damages based upon alleged gross negligence of the servant, there can be no recovery of such exemplary damages in the absence of a recovery of actual damages therein; and (3) That the law does not permit the recovery of actual damages against the principal and only exemplary damages against the agent. In my view, the Court incorrectly referred to the master and servant as joint tort-feas-ors. However, the judgment affirming the dismissal by the trial court was still correctly premised upon the other two stated grounds, and, in my opinion, would also have been correctly based upon the first ground if the court had referred to the master and servant as being jointly liable, instead of designating them as joint tort-feasors.

In Hunt v. Ziegler, supra, the plaintiffs sued the servant after having first filed suit against his master under the doctrine of respondeat superior, had settled their case with Court approval and accepted payment of the judgment. The writ of error was granted upon a practice question which was discussed by the Commission of Appeals and the opinion of the Court of Civil Appeals was approved on the merits of the case. Hence, the discussion here will be in terms of the opinion of the Court of Civil Appeals. The second suit against the servant was based upon the theory that the plaintiffs were damaged far in excess of the amount awarded by the judgment and collected from the master, and that they were entitled to recover an additional amount against the servant after allowing credit for the amount theretofore paid by the master. The trial court, based upon a jury verdict, rendered judgment in favor of plaintiffs for such additional amount. The Court of Civil Appeals reversed and rendered judgment that plaintiffs take nothing, holding that the second action against the servant was barred. The Court recognized the rule that “where there has been a judgment against one or two or more joint tort-feasors, followed by an acceptance of satisfaction, all other tort-feasors are thereby released, and the judgment and satisfaction may be successfully pleaded by them to the maintenance of- the same or another suit by the same plaintiff involving the same cause of action.” The plaintiffs contended that such rule was applicable only to joint tort-feasors and not to other wrongdoers such as the master and the servant in that transaction; that the master, if liable at all, was only constructively or “secondarily” so, while the servant was the active and only wrongdoer, and the master could have exacted contribution, even full indemnity, of the servant. At pages 938-939 of the opinion, the Court said:

“These contentions, if correct, do not occur to us to furnish any reason for excluding the principle stated from application to the case presented here. The distinction sought to be drawn is purely superficial; it has no effect whatever upon the essential and controlling element of identity of causes of action.
“The rule is applied to joint tort-feasors because of the fundamental fact that there is but a single injury in itself and of itself indivisible, and constituting an indivisible cause of action, for which both in law and good conscience there can be but one satisfaction; and when that satisfaction is made by one of the joint tort-feasors, or by any person (Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129), it has the effect of releasing all others who may be jointly, or jointly and severally liable.
“So, in the case at bar, the situation is in principle precisely the same. The Glass Company, the master, if liable at all, was constructively so because of its responsibility for the act of Hunt, its servant; and if the latter was liable, he was so because of his individual responsibility for the identical act. Both were tort-feasors, and whether jointly liable or not appellees had a cause of action against them, severally, it is true, but only upon one cause of action, and it was an indivisible one. Upon that cause of action appellees might have sued both tort-feasors in the same action, and recovered a joint and several judgment against them, but the amount could not have been apportioned between them, for the very obvious reason that the cause of action was single and indivisible. Or appellees might have maintained a suit against each of the tort-feasors at the same time, and even prosecuted each to judgment, but in such case the satisfaction of one judgment would surely have had the effect of releasing the other. Here the aggrieved parties successfully prosecuted their single cause of action against one of the tort-feasors, and received and accepted satisfaction in full of the judgment. That was satisfaction for the entire injury, for the single cause of action, and although it moved from only one of the wrongdoers, no foundation remained for any claim against the other. The cause of action was extinguished. We think the authorities are as one in support of this holding.” (Citing many authorities.)

It should be noted in Hunt v. Ziegler, while the court first discussed the rule concerning joint tort-feasors, that the master and servant were referred to as only “tort-feasors” and in holding the second suit against the servant barred by the judgment and payment in the first suit the court continued to describe them as “tort-feasors” rather than “joint tort-feasors”.

When we consider that the master and servant are not joint tort-feasors, although some cases have incorrectly so referred to them, I believe that, by analogy, the cases of Pearson v. Jacobs, supra, and Hunt v. Ziegler, are favorable to appellee rather than appellants.

Another case relied on by appellants is Sherwood v. Huber & Huber Motor Exp. Co., 1941, 286 Ky. 775, 151 S.W.2d 1007, 135 A.L.R. 263. In that case the plaintiff first sued the servant for injuries in an automobile collision and recovered a judgment. Execution was issued and returned “no property found” Thereafter, the plaintiff filed suit against the master. The trial court overruled a demurrer filed by plaintiff directed to a plea urged by the master that plaintiff had made an election by first pursuing her cause of action against the servant and that the second suit was barred. The Court of Appeals reversed with directions to sustain the demurrer. Relying principally upon equitable principles, the appellate court held, in substance, that a final judgment in the prior action which could not be satisfied through execution or otherwise amounted to no judgment at all, and would not bar the second action against the master. In Sherwood, the court did not hold that in the case of master and servant the plaintiff could pursue her cause of action against the servant and later against the master if a legal tender of the amount of the first judgment had been made. The Court also did not hold that the plaintiff could have refused to accept payment of the first judgment and still assert a cause of action in a later suit against the master. It is evident that by the word “satisfaction” the Court meant “payment” or “collection”. At page 1012 of the opinion, the Court said:

“We conclude from the foregoing and from reason that the election is not complete so as to create a bar to a later separate action against another who is also liable to the plaintiff for the same cause of action until satisfaction has been made by someone or more of those whom the law makes responsible for the damages sustained.”

I do not believe that Sherwood is authority for appellants’ position here, and it appears to me that had the judgment debtor in the first suit made a valid legal tender of the amount of the judgment, the Court would have ruled differently.

Appellants also rely upon rules announced in the Restatement of the Law .of Torts, Judgments and Restitution. Some of the statements and comments plainly apply only to true joint tort-feasors. Other general statements appear to support appellants’ position that the instant suit is not barred. However, I do not find in these statements or comments any specific and flat rejection of appellee’s position here that where an election is made by a plaintiff to first recover' judgment against the master for a tort committed by the servant for which the master is only derivatively liable, and full payment is legally tendered by the master, that the election is completed and is a bar to a second suit against the servant on the same cause of action. If the rules announced in Restatement of the Law can properly be specifically construed against appellee’s stated position, then I do not believe that they are supported by analogous Texas decisions nor by the weight of authority elsewhere.

I also do not agree with appellants’ contention that the judgment against the master has not been satisfied. The appellee not only tendered full payment of the judgment to the district clerk and made him an agent for the purpose of paying appellants but, in addition, made a legal tender in cash. In my view, this is the equivalent of satisfaction of the judgment The judgment debtor did everything he was required to do to satisfy it; and he was entitled to have the judgment against him discharged. When appellants elected to first pursue their cause of action against the master, in my view, this included the obligation to accept payment of it, certainly, where it was promptly made as in this case, and before the second suit against the servant was brought to trial.

While I agree with appellee that appellants’ election to first recover judgment against the master coupled with the legal tender of payment constitute a bar to the second suit against the servant, I would not rest affirmance of the judgment upon ap-pellee’s contentions as to res judicata or collateral estoppel.

It has been held that within the purview of res judicata the servant is not in privity with the master. Maryland Casualty Co. v. Morris, 1939, Tex.Civ.App., 128 S.W.2d 86 (n. w. h.); 34 Tex.Jur.2d, Judgments, § 418, page 463. The rule as to persons who may be in privity with actual parties to a suit is stated in the case of Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044 (1937), as follows: . “Privity, in this connection, means the mutual or successive relationship to the same rights of property; that is to say, all persons are privy to a judgment whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to the commencement of the action.” The prior action here was brought solely against the master. In my view, appellee, the servant, was not in privity with the master in so far as the first suit was concerned under the rules laid down by the above-cited cases. Because appellee was not actually a party to the first suit and was not in privity with the master who was sued therein, he would not be protected from the second suit under either res judicata or collateral estoppel. These subjects are discussed in the cases of Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930); Grimes v. Maynard, 1954, Tex.Civ.App., 270 S.W.2d 282 (writ ref.); Ray v. Chisum, 1953, Tex.Civ.App., 260 S.W.2d 118 (wr. ref., n. r. e.); 34 Tex.Jur.2d Judgments, § 450, pages 490-492. McNamara v. Chapman, supra, heavily relied upon by appellee, recognizes that had the judgment against the master proved uncollectible, the subsequent suit against the servant might not have been barred.

Both parties recognize the rule that where the liability of a defendant is derivative (such as that of a master under respondeat superior), a judgment in favor of the party from whom the liability is derived (such as a servant who has committed a tort while in the scope of his employment), may be set up as a defense, even though the defendant in the latter suit was not a party to the first action. See Siratt v. City of River Oaks, 1957, Tex.Civ.App., 305 S.W.2d 207 (wr. ref.); Eastland County v. Davisson, 1929, Tex.Com.App., 13 S.W.2d 673, affirming Tex.Civ.App., 6 S.W.2d 782; Stafford v. Lawyers’ Lloyd of Texas, 1943, Tex.Civ.App., 175 S.W.2d 461 (n. w. h.); Allstate Insurance Company v. Brown, 1956, Tex.Civ.App., 289 S.W.2d 300 (n. w. h.). This is not such a case, because the master here was held liable to plaintiffs in the first suit based upon the tortious conduct of his servant.

It is the public policy of this state to avoid a multiplicity of suits. 1 Tex.Jur.2d, Actions, § 45, pp. 555-556. In my view, the instant suit against the servant should be and is barred because of the election made by plaintiffs to first recover judgment and payment thereof from the master, and when a legal tender of full payment was made by him, as is shown here, the election became complete. The judgment should be held to be legally satisfied and plaintiffs’ cause of action extinguished.

My original concurring opinion herein is withdrawn and this opinion, on motion for rehearing, is substituted therefor.

      . The plaintiff was injured by an automobile driven by the defendant who was the owner’s servant. The owner was not present at the time of the accident. The plaintiff had already recovered a judgment for his injuries against the master, and in the second action sued the servant for the same injuries. It was held that tbe judgment against the solvent master for the tort of his servant was a bar to a suit brought by the same plaintiff against the servant for the same cause of action although the prior judgment had not been satisfied, but complete satisfaction had been duly tendered plaintiff.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    EMPLOYERS REINSURANCE CORPORATION, Appellant, v. Barton Eugene VANN, Appellee.
    No. 5744.
    Court of Civil Appeals of Texas. El Paso.
    April 6, 1966.
    Rehearing Denied April 27, 1966.

      Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, for appellant.
    Warren Burnett and Robert D. Pue, Odessa, for appellee.
   PRESLAR, Justice.

This case arose under the Texas Workmen’s Compensation Act, and based on the jury’s answers to special issues, judgment was entered for the plaintiff, Barton Eugene Vann, awarding him compensation for total and permanent disability. We affirm.

Questions on appeal are whether the court should have submitted special issues inquiring whether a prior injury suffered by plaintiff contributed to his incapacity, and if there is any evidence or sufficient evidence to sustain the jury findings to establish wage rate or to require the submission of such issue.

Appellant, Employers Reinsurance Corporation, assigns as error the failure of the trial court to submit its tendered issues inquiring whether a prior injury to plaintiff’s fingers of his left hand contributed to his incapacity, and if so, by what percentage. The question is whether there was evidence to raise the issue. Plaintiff testified that he had broken three fingers of his left hand while on the job for “some little outfit in Abilene” and that he missed two weeks’ work because of such injury. That occurred in 1953. He then was asked: “As a matter of fact, as you told me in your deposition, every day the fingers in your left hand are stiff, aren’t they?” To that he answered, “That’s right, sir.” The above-summarized evidence and the one question is the total evidence relied on by appellant to raise the issue of contributing incapacity. Appellee’s present incapacity results from injuries to his back. Involved is that portion of section 12c of Article 8306, Texas Revised Civil Statutes, 1925, Vernon’s Ann.Civ.St. art. 8306, § 12c, reading as follows:

“If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.” (Emphasis ours).

Thus, by the wording of the statute and the wording of the requested issues, we are concerned with “incapacity”. Viewing the evidence in the light most favorable to appellant, and assuming that the evidence means the three fingers are always stiff, it still is not evidence that such condition interfered with the man’s ability to work— that it was incapacitating. It is not evidence that it contributed to his present incapacity independently or in concurrence with his present injury. On the other side of the question, the evidence is abundant that during the ten years since the injury the workman had a great capacity for work. His ability was such that he worked for the same employer as a roughneck and driller for ten years, and when that employer’s rig was not operating, he worked temporarily for others. He testified that the fingers did not bother his work as a roughneck, that none of his employers ever had any quarrel with his work, and testimony from others concerning his ability to work was that “he was an awful good hand as a roughneck” and that there was “no better roughneck in the oilfields”. Rule 279, Texas Rules of Civil Procedure, requires the court to submit the controlling issues made by the pleading and evidence, but we are of the opinion that the evidence on which appellant relies was, at most, a mere scintilla of evidence, and that reasonable minds could not differ on the issue which it attempts to create. Appellant’s Points One and Two are accordingly overruled.

By Points of Error presented in both its Motion for Judgment Non Obstante Veredicto and Motion for New Trial, appellant urges that there was no evidence to support the jury’s answer to Issue No. 12 and the evidence was insufficient to support such issue, and that there was no evidence, or insufficient evidence, to support the submission of same. In response to Issue No. 12, the jury found that the plaintiff had worked at least 210 days of the year immediately preceding the date of his injury. The plaintiff was injured on March 6, 1963, while employed by Parker Drilling Company, for whom he had gone to work on March 1st. A review of the evidence for the twelve months immediately preceding the date of injury shows that the plaintiff’s income tax returns for the years 1960, 1961 and 1962 were in evidence, and they reflected that he averaged an income of $7,800.00 for such years. He testified that to earn such income as a roughneck and driller it was necessary that one work “nearly every day”, and that he took no extended vacations — never more than two or three days at a time. He earned $7,753.-48 in the year 1962, During all of these years he was employed by F W A Drilling Company, but worked for others temporarily between jobs for F W A, and he was working for that employer right up until the day he went to work for Parker, the “next day” after the F W A rig was shut down. Thus, of the twelve months immediately preceding the injury, some 300 days of such period was in 1962, as to which the testimony was that to earn his income for such period one had to work nearly every day, and that he was never off more than two or three days at a time. As to the remainder of the twelve months period, January, February, and the first six days of March, it is undisputed that he worked for Parker six days in March. In connection with his testimony of having worked for F W A for ten years, he was asked: “You were actually working for them right up until the time you hired out to Parker and got hurt, weren’t you?” The answer to that question was “yes”, as was the answer to a later question: “Now along in February, of this year, 1963, were you working for F W A ?” Plaintiff further testified:

“Q Now, I want to ask you this question before I forget it: Between the 12 month period of time between March 6, 1962 and March 6, 1963, in that 12 month period — now do you have in mind what period of time I am talking about?
A Yes.
Q Did you keep a work record of how many days you worked as a roughneck and how many days you worked as a driller?
A No sir, I don’t keep no record of that at all.
Q Do you know positively how many days you worked as a roughneck and how many days as a driller?
A No sir, I couldn’t tell you that.
Q Now, I have to ask you this question: Do you know of your own knowledge whether or not you worked as many as 210 days as a roughneck during that period . of time?
A I probably did, at least. I couldn’t tell you for sure.
Q You just don’t know about it?
A No.
Q Now, on the days during that year, talking about as a roughneck, on the days you actually worked what would be your average daily pay ?
A Around $20 a day.”

From the above summarized and quoted evidence, the jury found that the plaintiff had worked at least 210 days of the year immediately preceding his injury. Viewing only the evidence favorable to such finding, we overrule appellant’s contention that there was no evidence to support such finding; and, viewing all the evidence, we overrule appellant’s point that the evidence is insufficient to support such assignment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Hartford Accident & Indemnity Co. v. Gant, Tex.Civ.App., 346 S.W.2d 359.

From the above discussion of the evidence available and the requirements of Rule 279, it follows that we are of the opinion that appellant’s remaining points of error as to the submission of Issue No. 12 should be overruled.

All points of error having been overruled, the judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Lynn HOWARD, Appellant, v. PRESTON STATE BANK, Appellee.
    No. 16728.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    Rehearing Denied May 6, 1966.

      Matthews, Payne, Pace, Sands & Benners and Fred H. Benners, Dallas, for appellant.
    James, Ingram & Glenn, and R. W. (Bill) Glenn, Dallas, for appellee.
   RENFRO, Justice.

Defendant in the trial court, Mrs. Lynn Howard, appeals from a summary judgment foreclosing a lien on an automobile in favor of the plaintiff, Preston State Bank.

She contends the judgment was not the relief applied for in plaintiff’s motion for summary judgment and/or plaintiff’s pleadings upon which its motion was based; that plaintiff did not have a valid chattel mortgage on the automobile, and that the record presented genuine material facts as to the creation and existence of a valid chattel mortgage.

On March 18, 1965, plaintiff filed its original petition against Howdy Howard and wife Lynn. (Howdy Howard is not a party to the appeal.) The petition alleged Howdy Howard executed his promissory note to the Bank in the sum of $4,500.00; in conjunction with the execution of the note Howdy executed a chattel mortgage on a 1963 Lincoln Continental, 4-Dr. automobile; that defendant Howard had made no payments on the note; that Lynn Howard had possession of the car and refused to surrender it to plaintiff. Prayer was for judgment for principal and interest on the note.

On April 12, 1965, Lynn Howard filed an answer in which she denied execution of the note and mortgage; that Howdy had no authority from her to execute the note; that she and Howdy were separated with divorce proceedings pending; that the automobile was her separate property.

Plaintiff filed motion for summary judgment on April 20, 1965, on the pleadings, affidavits and exhibits.

On April 30 plaintiff filed its first amended petition in which it plead fully the creation of its lien on the automobile, by loan note of $5,000.00 and chattel mortgage executed by Howdy on July 29, 1963, and prayed for judgment for its debt and foreclosure of its lien. The personal loan note and lien agreement, a copy of a customer’s draft, along with certificate of title to the automobile were attached to the petition. The petition alleged that the loan was made to Howard to enable him to purchase the automobile.

Plaintiff, on April 30, filed its supplemental motion for summary judgment upon its claim as plead in its first amended petition. A long affidavit was filed by plaintiff in support of its motion. The affidavit showed that on July 29, 1963, plaintiff loaned Howdy Howard the sum of $7,-000.00 to purchase a 1963 Lincoln as a wedding present for his wife Lynn, and that $5,000.00 of the above amount was secured by a chattel mortgage on the Lincoln. The certificate of title, a customer’s draft, and the personal loan note and lien agreement were attached to the affidavit or motion.

On May 10 plaintiff filed its second amended original petition which went more into detail concerning the transaction with Howdy Howard and alleged that Lynn knew and knows of the priority of plaintiff’s lien. Plaintiff alleged it complied with Article 1436-1, § 1, Vernon’s Ann. Texas Penal Code. All of the heretofore mentioned documents were attached to the petition. Further in support of the motion, an affidavit was filed by the Assistant Cashier of the Bank, in which he stated the $5,000.-00 loaned to Howdy Howard was used to purchase the car in question; that on August 28, 1964, Howdy renewed the note and lien agreement.

Defendant Lynn Howard filed a verified reply to plaintiff’s motion on May 13, 1965. In substance she alleged there were material fact issues, namely whether a valid lien had been fixed against the automobile; that title had been in her since July 29, 1963; she had not executed a mortgage on the automobile; that Howdy Howard had no authority to execute a mortgage on the automobile.

The court having “considered all pleadings on file, Plaintiff’s Motion for Summary Judgment, Supporting Affidavit and Defendant, Lynn Howard’s, opposing affidavit” found there was no genuine issue of any material fact and that plaintiff Bank was entitled to judgment as a matter of law. (Emphasis added.)

It is provided in Rule 166-A, sub. (c), Texas Rules of Civil Procedure, that judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In construing the above rule, the Dallas Court of Civil Appeals in Burnett v. Cory Corporation, 352 S.W.2d 502 (1961, ref., n. r. e.), held: “This truly implies pleadings, depositions, and admissions on file at the time of the hearing of the motion for summary judgment. To hold otherwise, would violate the salutary provisions of our rules permitting amendments to pleadings. The summary judgment rule clearly provides that the trial court shall determine from the entire record then before it, whether in fact, there is a disputed material issue to be determined by a trier of fact. * * * The amended petition, unchallenged by exceptions, stands in the place of the original petition as part of the record in the case.”

In Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684 (Dallas Civ.App., 1955, no writ hist.), it was held that the court was duty bound to consider plaintiff’s last amended pleading in full on the hearing for summary judgment.

The judgment recites that the court did consider all the pleadings. We think he did not err in considering the second amended petition.

Moreover, defendant did not object or except to the action of the court in considering all the pleadings. If the court’s action was error, such error was waived. Teneha Oil Company v. Blount, 368 S.W.2d 655 (Beaumont Civ.App., 1963, no writ hist.).

Neither do we find disputed material facts in the record.

It is undisputed that Howdy Howard borrowed money from plaintiff in order to buy an automobile as a wedding present for his wife Lynn. It is undisputed that he executed a note and chattel mortgage in favor of plaintiff. It is also undisputed that the certificate of title issued to defendant shows plaintiff as first lien holder. It is undisputed the note remains unpaid.

The lien to plaintiff was shown on the certificate of title in compliance with Article 1436-1, § 24 of the Penal Code. Article 1436-1, § 47, provides that when a lien is discharged, the holder thereof shall, on demand of the owner, execute and acknowledge before a notary public the discharge of the lien upon such form as may be prescribed by the Department. This was never done. The lien has never been released by plaintiff.

Defendant’s contention in her reply to the motion for summary judgment that the lien to plaintiff was invalid is a mere legal conclusion, and, in our opinion, an erroneous conclusion.

Nor does the fact the car was given her by her husband Howdy to be her separate property invalidate plaintiff’s lien. Howdy could not give her the automobile until he borrowed money from the plaintiff to buy the car from the dealer. The lien to plaintiff was perfected before Howdy gave the automobile to defendant. She received the automobile subject to plaintiff’s lien. In fact, the certificate of title issued to her showed in the statutory manner that plaintiff was first lien holder.

All points of error have been considered and are overruled.

Affirmed.


author: WILSON, Justice.

text:
    WACO TRANSIT CORPORATION et al., Appellants, v. TRANSPORT WORKERS UNION OF AMERICA LOCAL NO. 276 et al., Appellees.
    No. 4475.
    Court of Civil Appeals of Texas. Waco.
    March 31, 1966.
    Rehearing Denied April 21, 1966.

      Jones, Boyd, Westbrook & Lovelace, Charles I. Nelson, Waco, for appellants.
    W. Lance Corsbie, Roy Rutland, Jr., Waco, for appellees.
   WILSON, Justice.

The decision of an arbitrator in a non-statutory arbitration proceeding conducted under a collective bargaining agreement was upheld by the district court. The transit company appeals. The principal question presented is whether the arbitrator’s decision included matters beyond his arbitral jurisdiction. We hold it did not, and affirm.

The collective bargaining agreement recited the right of the company to determine employee qualifications, and its right to “enforce discipline necessary to safe and efficient operation” was recognized. It was provided that “employees may be disciplined or dismissed for violation of this agreement or other just cause only”. Article 17 relating to “discipline, dismissal and grievances” provides for detailed preliminary grievance procedure “if an employee or union feels that he has been unjustly disciplined or dismissed” for obtaining review of the company’s decision. It was agreed that the employee or union “shall attempt to adjust the matter” with the company supervisor and if “the matter is not settled” appeal was authorized to an official for the company’s decision. It concluded: “if the final decision of the company in any matter arising under this article is not satisfactory to the union, the union may refer the matter to arbitration” to be conducted under the terms of the contract. The parties agreed, however, that “if the company’s decision is that the employee has been unjustly disciplined or dismissed, he shall be reinstated and compensated for any wage loss suffered by him.”

As a result of the discharge by the company of an employee-member of appellee union, the parties executed a “stipulation” for submission to a voluntary labor arbitration tribunal under auspices of American Arbitration Association. The matter submitted for arbitration was stated in a letter adopted in the stipulation to be the contention or “opinion” of the employee and the union “that the recent disciplinary action taken by the corporation in his behalf is unjust and unwarranted.”

After a hearing the arbitrator agreed upon, Professor Roy Ray of the Southern Methodist University School of Law, rendered a decision in which he concluded (1) that the discharge was without just cause, but (2) that a suspension was justified; and a one-month suspension period was fixed. The company was directed to reinstate the employee with back pay and seniority rights at the expiration of the suspension period.

The company’s contention here is that the “only question submitted to the arbitrator was whether the disciplinary action taken by the company was based upon good cause,” and he was without jurisdiction to determine that “just cause existed for disciplinary action, but not for discharge.”

The jurisdictional provision in the collective bargaining agreement prescribes only that if the final decision of the company in “any matter” arising under the article concerning discipline, dismissal or grievances is not satisfactory, the union may refer “the matter” to arbitration. It requires the arbitrator to issue a written decision containing instructions to the parties concerning “the settlement of the case.” It is sufficiently broad that it must be said that every matter included in the arbitrator’s decision was included expressly or by necessary implication in that article of the agreement. The “stipulation” states that the “matter” agreed to be submitted is: “that the recent disciplinary action taken” by the company “is unjust and unwarranted.”

The parties devote much of their briefs to debating whether state or federal law governs the jurisdictional question, and what the rules of decision are under each. We regard those questions as immaterial. The question presented involves the interpretation of the stipulation from which the arbitrator’s authority is derived. This is a matter of contract law under Texas rules and under federal decision. Lodge No. 12, Dist. No. 37, etc. v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112, 117, cert. den., 368 U.S. 926, 82 S.Ct. 361, 7 L.Ed.2d 190. See Textile Workers’ Union of America, etc. v. American Thread Co., 4 Cir., 1961, 291 F.2d 894. In this respect the holding of the Texas Supreme Court in Gulf Oil Corporation v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959) that the authority of the arbitrator is limited to a decision of the matters submitted expressly or by necessary implication by the arbitration agreement from which his authority is derived, is not opposed to that of the United States Supreme Court in United Steel Workers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); and United Steel Workers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403, (1960) to the effect that a claim should not be excluded from arbitration unless there is an express exclusion or forceful evidence of such purpose.

In Guidry, the sole question submitted to arbitration was expressly limited to whether the employee’s discharge was for cause. The arbitration award determined, notwithstanding, that the discharge was discriminatory, that the employee should be demoted, and the company should pay back wages. It was held the issue of the penalty to be imposed exceeded the scope of submission which was limited by the agreement of the parties to whether the discharge was “for cause.”

The United States Supreme Court rule applicable to section 301 of the Labor Management Relations Act, 29 U.S.C.A., Sec. 185, is not to be contrasted: “For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. That doubts “should be resolved in favor of coverage” by the arbitration agreement, as that court holds, is simply a rule of construction in case of ambiguity. See Smith, “The Question of Arbitrability”, 16 Southwestern L. Journal 1.

We have no difficulty under both statements of the applicable rules in rejecting the contention that the agreement of the parties here confines the arbitrable issue to whether the discharge was based on good cause. We reject also the argument that “disciplinary action” does not include dismissal.

In the “trilogy” cases the questions were whether specific grievances were ar-bitrable under broad collective bargaining agreements requiring arbitration of “all disputes between the parties ‘as to the meaning, interpretation and application of the provisions of this agreement.’ ” This is obviously a greater compass than whether “disciplinary action taken is unjust and unwarranted.” Our problem is, if the specific quoted question is answered in the affirmative, have the parties by their agreement submitted the further question of what disciplinary action is just and warranted; and have they empowered the arbitrator to make a binding judgment as to the details of the discipline so found to be just and warranted.

The arbitration agreement contained in the letter is to be construed in connection with the collective bargaining agreement, Article 17(e), which shows the intention of the parties to be that if a grievance is determined amicably by a decision that the employee “has been unjustly disciplined or dismissed” an agreed consequence will ensue: “he shall be reinstated and compen-stated for any wage loss.” This makes reinstatement a concomitant of the decision. It is obviously impossible to fix and compute “wage loss” unless it also be decided, as did the arbitrator, that suspension is a proper discipline, where the suspension period is to be excluded in computation of wage loss. The power to award suspension, therefore, is implied as attendant and coincident to the company’s duty and authority in preliminary procedure, and of the jurisdiction of the arbitrator under submission of “the matter” specified in Article 17(e) of the collective bargaining agreement and the stipulation. Appellants’ points are overruled. Affirmed.

TIREY, J., not participating.


author: GREEN, Chief Justice.

text:
    PAL-PORT CLAY PRODUCTS CO., Inc., et al., Appellants, v. Joe LEE, Appellee.
    No. 187.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 7, 1966.
    Bell, Gwin & Furse, by Lawrence P. Gwin, Bay City, for appellants.
    Mandell & Wright, by John N. Barnhart, Houston, for appellee.
   GREEN, Chief Justice.

This is an appeal from an order overruling ' appellants’ pleas of privilege. Appellants are two of five defendants sued in this cause, the other three not being parties to this appeal.

Appellants have filed a motion to dismiss the cause from the docket of this court, stating that all matters in issue between the parties plaintiff and defendants have been settled, and final agreed judgment has been entered in the trial court. The trial court was duly authorized to enter such decree, since the rule is well established that where a plea of privilege is overruled, and appeal is taken, the trial court retains jurisdiction during such appeal to proceed to trial on the merits. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Smith v. Crockett Production Credit Association, Tex.Civ.App., 372 S.W.2d 956, writ ref. n. r. e.; Ricks-Maguire Company v. Oliver, Tex.Civ.App., 376 S.W.2d 434. In view of the agreed judgment, the case pending in our court on the venue issue has become moot, and an order dismissing the appeal will have no effect upon the finality of the judgment. Appellants’ motion is granted, and the appeal is ordered dismissed at appellants’ costs.

Appeal dismissed.


author: McDONALD, Chief Justice.

text:
    KLEMP CORPORATION, Appellant, v. J. B. THOMPSON, Individually and d/b/a the H. L. Thompson Company, Appellee.
    No. 4440.
    Court of Civil Appeals of Texas. Waco.
    April 14, 1966.
    Rehearing Denied May 5, 1966.

      Dow, Dow, Cogburn & Dow, Edmund L. Cogburn, Houston, for appellant.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendant Klemp from a judgment for plaintiff Thompson, in a suit for commission (based on breach of exclusive sales agency contract) on aluminum grillwork sold by Klemp for the Humble garage in Houston; and for profit losses due to defendant’s failure to fill purchase orders for materials (not related to the Humble job).

Plaintiff is a manufacturer’s representative in Houston. Defendant is a manufacturer of metal gratings used in building construction. Plaintiff had represented defendant as distributor and agent for a number of years. In early 1960 defendant perfected an aluminum grillwork called ANOTEC. Plaintiff and defendant negotiated for the sale of Anotec by plaintiff; and plaintiff commenced selling Anotec for defendant, receiving a 10% commission on sales. In 1960 plaintiff learned of the Humble garage to be built in Houston, and commenced work to promote the use of Anotec on such building. Defendant thereafter requested plaintiff to cease his efforts on the Humble job and let Klemp handle it. Plaintiff complied after being assured by the president of Klemp that “you will be taken care of; you will be protected”; and: Q. “Did he reassure you that your commission would be paid?” Ans. “Yes sir.” Defendant thereafter sold $89,179.50 worth of Anotec for the Humble job through an A1 Grossman of Architectural Sales, Inc. On September 12, 1962 Klemp advised plaintiff by letter: “Enclosed please find credit memo in amount of $1000 as commission against the Humble Oil job. I am pleased that you are able to participate to some extent with us in spite of the fact that the job was handled and closed by Grossman in California * * *. After the application of the $1000 commission against your account, there is $1473.79 currently due us at this time.”

Plaintiff thereafter filed suit against defendant, alleging he was exclusive sales agent for Anotec for Houston and Harris County, and seeking 10% commission on the sale of Anotec for the Humble garage job; plaintiff further alleged that defendant failed to fill purchase orders in various other transactions resulting in loss of profit to plaintiff, and sought recovery of resulting profit losses.

Trial was to a jury which found:

1) The price for Anotec used on the Humble Garage Building in Houston was $90,000.
2) On or about March 6, 1960 plaintiff and defendant agreed that plaintiff was to be exclusive sales agent for defendant in the sale of Anotec in Houston, Harris County, Texas.
3) Plaintiff and defendant agreed that from all sales of Anotec in Houston, Harris County, plaintiff would be paid a commission of 10% of defendant’s price.
4) Plaintiff was not the producing cause for the sale of Anotec for the Humble Garage.
5) Architectural Sales in executing the contract for the sale of Anotec on the Humble Garage building was acting as agent of Klemp.
6) Plaintiff expended time, labor, services, expenses, and effort in connection with the sale of Anotec on the Humble Garage job.
7) Klemp used to its benefit the time, labor, services, etc. furnished by plaintiff in connection with the sale of Anotec for the Humble job.
8) Defendant knew plaintiff furnished such time, labor, services, etc. expecting to be compensated therefor.
9) $4500 is the reasonable value of the time, labor, services, etc. furnished by plaintiff in securing the sale of Anotec used on the Humble Garage.
10) Plaintiff did not accept the $1000 credit in full satisfaction of his claim for commission on such sale.
11) At the time Thompson received the $1000 credit from Klemp, there was not a bona fide dispute over plaintiff’s right to commission on the sale of Anotec for the Humble job.
12) In the agreement whereby Klemp was to fabricate materials for delivery to Thompson, time of delivery was an essential part of the agreement.
13) Klemp in failing to deliver the materials to Thompson breached its agreement.
14) Thompson sustained $1824.24 loss of profits as a result of the breach of agreement to deliver materials.

The trial court entered judgment on the verdict that Thompson recover $7919.75 ($8919.75 less the $1000 paid) commission on the Humble Garage; together with $1824.42 for loss of profits sustained as result of breach of agreement by Klemp to deliver materials; plus $1000 for attorneys’ fees. The trial court further entered judgment for Klemp against Thompson for $7096.02 which Thompson agreed he owed to Klemp; plus $600 for attorneys’ fees, (resulting in net judgment for plaintiff of $3148.15).

Defendant appeals on 15 points, contending:

1) There is no evidence, or insufficient evidence to support the jury’s findings 2, 3, and 5, and the findings are against the overwhelming weight and preponderance of the evidence.
2) The trial court should have disregarded findings 10 and 11 as the evidence conclusively shows that plaintiff accepted the $1000 in full satisfaction for his claim for commission; and findings 10 and 11 are contrary to the overwhelming weight and preponderance of the evidence.
3) The trial court erred in allowing plaintiff attorneys’ fees, because plaintiff’s claim was a claim for damages for breach of contract, and not for personal services, and attorneys’ fees are precluded under Article 2226 V.A.T.S.
4) There is no evidence, or insufficient evidence, to support finding 12.
5) Issues 12, 13 and 14 constitute global and multifarious submission of several controlling issues, and therefore constitute a general charge.

Defendant’s 1st contention is that there is no evidence, or insufficient evidence, to support the jury’s findings to issues 2, 3, and 5.

Finding 2 was that plaintiff and defendant had agreed that plaintiff was to be exclusive sales agent for defendant in the sale of Anotec in Houston; finding 3 was that plaintiff and defendant agreed that plaintiff would be paid a 10% commission on all sales of Anotec in Houston.

Plaintiff testified that defendant’s sales manager Gregori orally appointed him defendant’s exclusive agent for the Southern part of Texas and provided that plaintiff would receive a 10% commission on all sales in the territory; the letter of March 3, 1960 from Klemp to plaintiff while not specifically appointing plaintiff an exclusive agent, states: “All of our prices include a 10% commission for your office”; Klemp wrote a great number of letters to prospective purchasers of Anotec, that plaintiff was its representative “in your area of Texas” ; there is in evidence a letter on Klemp’s letterhead, to plaintiff, and signed “Klemp’s International, Jacquelyn Bonds, Secretary”, which states that Mr. Gregori, Manager, advises that plaintiff “was our exclusive agent for the State of Texas.” We think findings 2 and 3 supported by ample evidence, and that such findings are not against the great weight and preponderance of the evidence.

In any event plaintiff was entitled to commission on the Humble job. It is undisputed that plaintiff was a sales agent for defendant for Anotec and entitled to 10% commission on all sales he made; that plaintiff learned of the Humble job; made efforts to sell Anotec for such job; advised defendant of the job and was requested by defendant to cease efforts on such job and let Klemp handle it; and that plaintiff complied after being assured by defendant’s President, that plaintiff’s commission would be paid if Klemp sold Anotec for the job.

Finding 5 is that Architectural Sales in executing the contract for the sale of Anotec for the Humble job was acting as agent for Klemp. Voluminous correspondence from Grossman of Architectural Sales to Klemp is on Klemp’s letterhead designated “Inter office correspondence”; and there is evidence from which it could be concluded that Grossman was an employee of Klemp. Moreover, Klemp was required to release its lien rights, on the conclusion of the Humble job. If Architectural Sales had purchased the Anotec from Klemp as contended by Klemp, then Architectural Sales was the proper party to execute release of lien for the Anotec installed on the Humble job.

The evidence is ample to sustain finding S.

Defendant’s 2nd contention is the evidence conclusively shows plaintiff accepted the $1000 in full satisfaction of his claim for commission. Issue 10 found plaintiff did not accept the $1000 credit in full satisfaction of his claim for commission on the Humble job; and Issue 11 found that at the time of receiving the $1000 credit from Klemp there was not a bona fide dispute over plaintiff’s right to a commission.

On September 12, 1962 defendant applied a credit of $1000 to plaintiff’s account, and advised plaintiff it was “as commission against the Humble Oil job.”

Plaintiff did not know what amount was owed him on the Humble job.

The burden of proof of an accord and satisfaction rests on the party alleging it as a defense. A definite offer, and unconditional acceptance and performance must be shown. The party who asserts a liquidated claim was discharged by an accord and satisfaction has the burden of alleging and proving the existence of a bona fide dispute over the claim, and must support their contention by sufficient evidence. 1 Tex.Jur.2d 244, 245. Here there is no evidence of plaintiff’s acceptance of the $1000 credit as a compromise. There is no evidence that the tender of the $1000 credit was ever offered to plaintiff “in full settlement.” In fact plaintiff did not even know the price defendant received for the Anotec on the Humble job, so as to compute his 10% commission. The answers to Issues 10 and 11 are supported by ample evidence, and are not against the great weight and preponderance of the evidence.

Defendant’s 3rd contention is levelled at the trial court’s allowance of attorneys’ fees for plaintiff. Defendant contends plaintiff’s recovery was for damages for breach of contract and not for personal services for which attorneys’ fees are allowed by Article 2226 V.A.T.S. Article 2226 permits recovery of attorneys’ fees in cases for claims for personal services rendered and labor done.

Statutes authorizing recovery of attorneys’ fees are penal in character and are to be strictly construed. Van Zandt v. Ft. Worth Press, Tex.Sup.Ct., 359 S.W.2d 893; Panhandle Broadcasting Co. v. Cercy, Tex.Civ.App. (n. w. h.) 363 S.W.2d 792. While plaintiff rendered service and effort, his recovery was based upon a breach of contract rather than for commission for making the sale. In fact defendant agreed to pay plaintiff his commission if he would cease his efforts and let Klemp handle the matter itself. See Panhandle Broadcasting Co. v. Cercy, supra. The contention is sustained.

Defendant’s contention 4 is that there is no evidence or insufficient evidence to support finding 12; and contention 5 is that Issues 12, 13 and 14 constitute global and multifarious submissions of several controlling issues and therefore constituted a general charge. The issues involved several purchase orders and it is defendant’s contention it was entitled to separate submissions on each transaction.

Issues 12, 13 and 14 found that in Klemp’s agreement to fabricate materials for delivery to Thompson, time of delivery was an essential part of the agreement, which Klemp breached, to plaintiff’s damage of $1824.24.

We think the evidence ample to sustain finding 12; and that such issues were not multifarious and global. Issues 12, 13 and 14 are controlling issues as required by Rule 279, Texas Rules of Civil Procedure. The contention is overruled.

The judgment is reformed, setting aside plaintiff’s recovery of $1000 attorneys’ fees, and as reformed is affirmed. Costs of appeal are adjudged ½ against appellant and Y2 against appellee.

Reformed and affirmed.


author: BELL, Chief Justice.

text:
    Verllin A. CAMPBELL et al., Appellants, v. J. D. McKINNEY, Appellee.
    No. 14748.
    Court of Civil Appeals of Texas. Houston.
    April 14, 1966.
    Rehearing Denied May 5, 1966.
    David J. Nagle, Houston, for appellants.
    Henry P. Giessel, Houston, Talbert, Gies-sel, Barnett & Stone, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Verllin Campbell brought suit in behalf of himself and wife, Evelyn, to recover damages resulting from personal injuries to his wife and for property damage to his automobile, all resulting from an automobile accident. Evelyn Campbell, as next friend of Pamela Wilson, her minor daughter by a previous marriage, sued to recover damages for personal injuries received by the child in the same accident. The jury acquitted appellee of all acts of negligence and the court rendered judgment that appellants take nothing.

The undisputed facts show appellee’s automobile hit the Campbell automobile from the rear while the Campbell automobile was stopped on Highway 75 about %o of a mile south of Centerville. The automobile was stopped behind at least one other automobile in obedience to the direction of a flagman who was controlling the flow of traffic at a construction site where new topping was being placed on the highway.

The jury answered in response to the following numbered special issues, inquiring as to appellee’s negligence, as follows:

1. Appellee was not driving at an excessive speed.

3. Appellee did not fail to apply the brakes prudently.

5. Appellee did not fail to keep a proper lookout for vehicles stopped on the roadway.

7. Appellee failed to swerve to the right.

8. Such failure was not negligence.

17. Appellee was acting under an emergency.

18. He thereafter exercised proper care.

19. The emergency was the sole proximate cause of the collision.

20. The collision was the result of an unavoidable accident.

The jury in response to the damage issues found for Pamela Wilson in the amount of $500.00, for Mrs. Campbell in the amount of $100.00, and for automobile damage in the amount of $500.00.

Appellant attacks the jury’s answers to each of the above specified issues except 7 and 8, on the ground that each is contrary to the overwhelming weight and preponderance of the evidence.

We must review all of the evidence bearing on each of said issues, both that which supports an answer and that which militates against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Mrs. Campbell and the occupants of her car know little of the driving behavior of appellee. Her automobile was stationary and had been for a few seconds before the collision. She had stopped behind other vehicles that had stopped in response to the directions of a flagman. She was headed south toward Houston, and so was appellee. Mrs. Campbell puts the point of collision on the north slope of the hill. She testified that to the north of the collision was a sign showing a speed limit of 45 miles per hour. No distance was stated. Also she stated there was a sign stating “Caution. Be prepared to stop” or something of that sort. No distance was stated.

Mr. McDaniel occupied the vehicle just ahead of Mrs. Campbell. Her automobile was knocked into his. He had been stopped in a line of traffic some 30 seconds when the collision occurred. There were some signs on the highway before the point of the collision which “warned of construction work being carried on and alerting motorists to be careful. There was a flagman just up ahead.” There were obviously construction and repairs to the surface for several miles north of the point of collision.

Mr. Ratliff, who was employed by the contractor who was doing the work, testified. He was informed by shortwave radio by the flagman of the collision. At the time he was between Centerville and the scene of the collision. He immediately returned to the scene. He arrived within 30 or 40 seconds. There was a caution sign 500 feet down the hill from the point of the collision. There was another about 350 or 400 feet from the scene reading “Be prepared to stop, Flagman ahead, One Way Traffic.” There was a blinking light on each corner of the sign. The flagman had a pick-up truck with signs hut the witness did not remember the wording. The signs remained in place after the collision for about an hour at which time they were picked up by the crew when work ended for the day.

Mr. Womack, a highway patrolman, investigated the accident. The collision occurred about S :30 p. m., April 15, 1963. Just north of the collision was a sign on the back of a pick-up truck. It had blinking lights on barricades. Farther north, mounted on a trailer, were three blinking lights. There were two red flags. One sign said, “Slow down, Watch for Flagman.” A yellow diamond sign read, “Be prepared to Stop.” The signs were about %o of a mile from the collision. He stated the flagman was visible on the upgrade. He noted the zone as being one where 60 miles per hour was the limit.

Apart from medical testimony, the next witness was the appellee, Mr. McKinney. He is a teacher in the Pasadena school system and among the subjects taught by him is one on driver education. He testified the collision occurred just over the crest of the hill as he was traveling south. It was about 90 or 100 feet south of the crest of the hill. It was obvious as he was driving from the north that new black topping was on the road. About 300 feet to the north of the point of the collision was a sign reading, “Watch for Flagman ahead.” He saw this sign and kept a lookout for the flagman ahead. He was driving at a speed of about 45 or 50 miles per hour. After seeing the sign, he maintained his speed of about 45 miles per hour. The regular speed limit at that point was 60 miles per hour. He saw no sign calling for a reduction to 45 miles per hour. He first became aware of danger when he topped the hill. At this time he saw the Campbell car and the exhaust pipe on some road machinery. Apparently the car was stopped, but he couldn’t be sure. He applied his brakes and tried to pull to the right. The wheels on the car locked. The pick-up with the sign came from south of the accident. He had not passed the pickup before the accident.

On cross-examination Mr. McKinney testified he had driven from Lawton, Oklahoma, which was about 300 miles away. After he saw the sign directing that a watch be kept for the flagman, he did not reduce his speed. He knew that about 200 feet from the sign the road was going to make a downward turn over the hill. He could not see over the crest of the hill. He did not know what was over the crest of the hill. He did not know whether a flagman was just over the crest or not. When driving at 45 miles an hour, it would require 130 to 140 feet to stop an automobile. He had seen the flagman’s sign and from that point could see only 200 feet to the crest of the hill and he nevertheless maintained his speed. Reaction time was about ¾ of a second. During such time at the speed he was going the car would travel about 45 feet.

We are of the view that the jury’s answer to Special Issue No. 1, finding ap-pellee was not driving at an excessive rate of speed under the circumstances, is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Under Mr. McKinney’s own testimony he saw a sign 200 feet from the crest of the hill which cautioned that a flagman was ahead. He could not see over the crest of the hill. He knew there was new topping on the road so that he should have known that the sign indicated actual work was being done a short distance away. He was driving at a speed that required a distance of from 130 to 140 feet to stop. He could see only 200 feet to the crest of the hill. He could not see beyond that point and yet he continued at the same rate of speed.

The jury’s answers that appellee was acting in an emergency are likewise so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. His negligence, as immediately above stated, placed him in the situation where he had to act quickly. He may not in such circumstance rely on sudden emergency. Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545; Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386; Higginbotham v. Ritchie, Tex.Civ.App., 367 S.W.2d 210, no writ hist. We do not mean that appellee was negligent as a matter of law, but our holding that the jury’s answer finding ap-pellee was not driving at an excessive rate of speed is contrary to the overwhelming weight and preponderance of the evidence, also makes the finding of sudden emergency against the overwhelming weight and preponderance of the evidence because appel-lee’s freedom from negligence is essential to his reliance on sudden emergency.

We further hold, in the light of our above discussion of the evidence, the jury’s answer finding an unavoidable accident is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

We need not discuss the other points raised.

Reversed and remanded.