Tullos v. Eaton Corp. , 688 S.W.2d 668 ( 1985 )

OPINION

BROOKSHIRE, Justice.

Plea of privilege ease. The Appellant appeals from an adverse order transferring his alleged cause of action against James Herman Gibson to Trinity County. Tullos’ cause of action against Eaton Corporation and James Herman Gibson was filed in Angelina County. It is uncontroverted that Eaton Corporation is a private corporation and that Eaton had no agency or representative in Trinity County — the county of Tullos’ residence — at the time the cause of action arose and at that same time the suit was brought against Eaton in the county adjacent and nearest to Trinity County, being Angelina County. Said corporation, at that time, had an agency, office and representative in Lufkin. The suit is lawfully maintainable, under the existing statute at the time of filing, TEX. REV. STAT.ANN. art. 1995 subd. 23 (Vernon 1964) (repealed), in Angelina County, against Eaton. There are two defendants. TEX.REV. CIV.STAT.ANN. art. 1995, subd. 29a (Vernon 1964) (repealed) provided that such suit could be maintained against any and all necessary parties.

The record clearly demonstrates that Eaton owned the equipment which was on the job where Tullos was injured. Eaton had a branch manager in Lufkin who had the authority and power to sell and service Eaton’s logging equipment, such as Tim-berjack skidders and Prentice loaders. This branch manager had salesmen under him. He had the power to hire and fire them. Eaton had mechanics to repair and replace the logging equipment and the brake systems thereon.

Among other testimony, there is evidence that James Herman Gibson ordered a 360 Timberjack by phone from Eaton. When it was delivered, according to some testimony, the brakes were apparently defective in that, after it was unloaded, it nearly ran into a nearby church. Thereafter, Gibson was told “that the thing had a bad hydraulic leak and no brakes, that it needed to be worked on.”

A version of evidence of the surrounding events is that when one of the men, apparently a co-employee working with or under Gibson, attempted to push down a tree in the forest the brakes did not work or did not work properly. The Timbeijack could not be stopped. The tree was hurled down, hitting and injuring, apparently seriously, Tullos.

It seems reasonably clear from the Statement of Facts on the Plea of Privilege that the posture of the Plaintiff/Appellant is now, and will be, that he will attempt to establish negligence on the part of Eaton Corporation and Gibson, of various sorts. Further, the claimant will attempt to establish theories of strict liability or products liability against Eaton. Against Gibson, he has pleaded failure to provide a safe place to work and failure to provide reasonably safe tools and equipment, pleading that they are non-delegable duties.

The record reveals that there will be a question as to whether Gibson was eligible to be a subscriber under Workers’ Compensation Law of Texas. Subject to the resolving of that issue, there will probably be a number of defensive issues inquiring about the Plaintiff/Appellant’s acts. Deci-sional law has been established that, in determining whether a party is a necessary party under TEX.REV. CIV.STAT.ANN. art. 1995, subd. 29a (Vernon 1964) (repealed), the non-resident Defendant’s join-der will be necessary, if needed to afford complete relief to claimant.

Appellant has alleged that he was an employee of Gibson. Gibson concedes that Tullos pleaded that Gibson acted as an agent for Eaton in furnishing on-the-job defective equipment at the very place where Tullos was trimming branches off downed logs. Joint liability and several liability, as well as a joint cause of action, is sought to be imposed upon the Defendants/Appellees.

It is clear that on the causation questions, in reasonable probability, that both producing cause and proximate cause will be vital issues affecting liability of either or both Defendants/Appellees. We find that the Appellant has proven his cause of action against Eaton, showing the propriety of venue against Eaton in Angelina County. Actually, no contest was made by Eaton. R. McDonald, “Texas Civil Practice in District and County Courts, 1 Texas Civil Practice, see. 4.36, page 448 (Rev. 1981), approves this quote:

“Every party whose joinder in the suit is necessary to the securing of full relief in ‘such suit’ is a necessary party in the sense that term is used in subdivision 29a.”

McDonald’s footnote cites Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (1939). Accord Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616 (1951). Thereafter, the Supreme Court refined and modified this statement to the effect that a party is necessary within the subd. 29a exception: “[I]f the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties.” Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944).

Also, where the facts and circumstances are such that the negligence or fault of one defendant is imputable to the other, then the defendant to whom the fault was imputed has been held to be a necessary party under subd. 29a. Whitley v. King, 227 S.W.2d 241 (Tex.Civ.App. — Waco 1950, no writ). See Port Terminal RR. Ass’n. v. Leonhardt, 289 S.W.2d 649 (Tex.Civ.App.— Fort Worth 1956, no writ). See and compare Schwertner v. Nalco Chemical Co., 615 S.W.2d 263 (Tex.Civ.App. — Tyler 1981, writ dism’d).

We find and hold that the cause of action against each Defendant/Appellee is intimately intertwined. This is transparently true concerning the damage issue. It is manifest that this is a suit for large, alleged personal injuries and damages.

For this claimant to secure full relief, or complete relief, it is glaringly clear that he should be afforded the opportunity to have concurrently, legally correct allocation of damages under a system of judicially fashioned comparative causation. See and compare the rationale of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), sometimes referred to as “Duncan II Opinion”. There was a previous case, bearing the same style, Duncan v. Cessna Aircraft Co., 632 S.W.2d 375 (Tex.App. — Austin 1982, writ granted), reversed, 665 S.W.2d 414 (Tex.1984), withdrawn February 15, 1984. It has become known as “Duncan I”.

Several fairly recent judicial decisions and statutes, as well as the Duncan opinions, Duncan I and II, necessarily affect the defenses available to Appellees and drastically determine, as well, the allocation of damages to multiple defendants. Admittedly “Duncan II” is a late case, decided after this suit.

General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977), involved a factual situation in which strict liability defendants, as well as negligence defendants, were involved. There, the court held that, under such facts, the case did not come within the scope of TEX.REV.CIV.STAT. ANN. art. 2212a (Vernon Supp.1985); hence, TEX.REV. CIV.ST AT. ANN. art. 2212 (Vernon 1971) controlled and governed the case. Appellant was injured in 1978. In General Motors Corp., supra, handed down on November 9, 1977, the court wrote, at page 862:

“We observe, however, that the system of comparative negligence and the apportionment of damages among negligent tortfeasors under Article 2212a is different from the division of damages among negligent and strictly liable tortfeasors under Article 2212. The present state of the statutory law permits apportioning contribution upon comparisons of negligent conduct among negligent tort-feasors. It does not provide any mechanism for comparing the causative fault or percentage causation of a strictly liable manufacturer with the negligent conduct of a negligent co-defendant. Article 2212a and the comparative causation advanced in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), portend problems which may retard the orderly trial of personal injury and property damage cases.... ”

It seems a fair comment to say that in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), the court considered and approached using comparative causation findings applicable in strict products liability cases. There, the plaintiff, Hopkins, had misused a product which was found to be unreasonably defective. Hopkins contributed to his own injuries and damages; the court held that when the injured plaintiffs misuse is a proximate cause of the damaging event, then the jury should determine and allocate the respective percentage which each cause contributed to the event; holding, however, that such misuse would not be an absolute bar to the claimant’s recovery. Misuse would be in the nature of a partial defense.

We readily concede that “Duncan I and II” were decided after the alleged date of this Appellant’s injuries, being July 13, 1978. Nevertheless, the decisional law existing as of the injury date in our case compellingly leads us to the conclusion that James Herman Gibson is a necessary party. The order sustaining his plea of privilege is reversed and the entire case is to be tried in the District Court of Angelina County.