Smallwood v. Parr , 1943 Tex. App. LEXIS 567 ( 1943 )

In addition to the grounds upon which the judgment of the court below is, upon rehearing, affirmed according to the opinion, written by Judge GRISSOM, in which I concur, the affirmance, I think, may well rest on another ground.

It is, I think, a sound proposition of law that the doctrine of discovered peril "presupposes negligence on the part of plaintiff and has no application where the position of peril of the person or property injured is not due to negligence for which plaintiff is responsible." 45 C.J. p. 988, § 539. It is an equally sound proposition that "The term ``contributory negligence' necessarily presupposes negligence for which defendant is responsible, which would of itself sustain an action but for the concurrence of the contributory negligence." 45 C.J. p. 943, § 502. Lancaster v. Jarrett, Tex. Civ. App. 258 S.W. 271; Payne v. Kindel, Tex. Civ. App. 239 S.W. 1011; Adams v. Gulf, etc., R. Co., Tex. Civ. App. 105 S.W. 526. Corollary propositions are: "If the negligence for which either defendant or plaintiff is responsible is the sole proximate cause of the injury, there can be no contributory negligence, and where there is no actionable negligence for which defendant is responsible, the question whether contributory negligence exists is immaterial." 45 C.J. p. 943, § 502. For authorities supporting one or another of these propositions, see the following: Wilson v. Southern Traction Co.,111 Tex. 361, 234 S.W. 663; Martin, Wise Fitzhugh v. Texas P. R. Co., 87 Tex. 117, 26 S.W. 1052; Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731; Texas N. O. R. Co. v. Rooks, Tex.Com.App., 293 S.W. 554, 556, saying: "In fact, the doctrine of contributory negligence does not apply, unless there is negligence on both sides." St. Louis S.W. Ry. Co. v. Casseday, 92 Tex. 525, 50 S.W. 125; Koons v. Rook, Tex.Com.App., 295 S.W. 592; Reilly v. Buster, Tex. Civ. App. 52 S.W.2d 521.

In consonance with said propositions relating to contributory negligence is the further one that a plea of contributory negligence is properly the subject matter of a plea in confession and avoidance. 45 C.J. p. 1114, § 690. In other words, the sole function of a plea of contributory negligence is to provide the necessary basis in the pleadings for avoiding defendant's liability for negligence, either established or assumed. Can it be logically denied that a plea tendering the issues involving the doctrine of discovered peril is not also in its essential nature a confession and avoidance? I think not. Sound reasoning seems to me to force the conclusion that the sole function of such a plea is to furnish the basis for avoiding the usual effect, upon plaintiff's right to recover, of contributory negligence, either established or assumed.

If the above propositions are true, then a further corollary proposition deducible therefrom is that, since contributory negligence necessarily presupposes negligence of the defendant (established or assumed), and, since liability existing by virtue of the doctrine of discovered peril necessarily pre-supposes contributory negligence (established or assumed), then there can be no liability of defendant based alone upon discovered peril in any case in which the defendant is affirmatively acquitted of all charges of primary negligence.

In my opinion, accepted principles and sound reasoning force the conclusion, that any judgment based alone — as is the judgment in this case — upon the doctrine, or principle, of discovered peril must, necessarily, rest upon a finding, or assumption, of the existence, of some primary negligence of the defendant which but for contributory negligence would entitle plaintiff to a recovery. There is, of course, absent such finding or basis for the assumption of its existence where, as here, the verdict of the jury has affirmatively acquitted the defendant of any negligence. If, in the terms of one of the foregoing propositions "where there is no actionable negligence for which defendant is responsible, the question whether contributory negligence exists is immaterial", then it is necessarily also true that where there is no actionable negligence for which defendant is responsible, its effect being to render immaterial any question of contributory negligence, a further question of discovered peril, which necessarily presupposes contributory negligence, is likewise immaterial.