Texas, New Mexico & Oklahoma Coaches, Inc. v. Williams , 1945 Tex. App. LEXIS 825 ( 1945 )

I concur in affirmance of the Trial Court's judgment. Defendant's requested special issue No. 14 relating to new and independent cause which was refused is copied in Judge Sutton's opinion. The only pleading referring to new and independent cause was "Further specially answering, in the alternative defendant says the collision in question was an unavoidable accident, or a new and independent cause, or both". It is apparent that no facts were pled which tended to show that the collision was the result of a new and independent cause. In my opinion an issue of new and independent cause was raised by the evidence which showed that plaintiff was struck by Greer's automobile. Whether such act of Greer constituted negligence on his part or not is immaterial. True, the determinative element of such issue is the same as that involved in Special Issue No. 2, which the court submitted, inquiring whether placing the baggage on the traveled portion of the highway constituted negligence, i. e. the element of foreseeability. For such act to have constituted negligence of the defendant, it must have been reasonably foreseeable that plaintiff would be struck by southbound traffic on the highway; for Greer's act in striking plaintiff with his automobile to have constituted a new and independent cause as to defendant's negligence, it must not have been reasonably forseeable. In other words, implicit in the finding of negligence is the finding that defedant's employee could have reasonably foreseen that plaintiff would be struck by southbound traffic; implicit in a finding that Greer's striking plaintiff with his automobile constituted a new and independent cause of the collision would have been a finding that defendant's employee could not have reasonably foreseen that plaintiff would be struck by Greer's automobile which was southbound on the highway. Also, included in the court's definition of "proximate cause" was the requirement that it be "that cause which in natural and continuous sequence, unbroken by any new and independent cause produces the injury", and included in his definition of "new and independent cause" was the requirement that it be an act or omission "which the defendant in the exercise of ordinary care would not have foreseen". Therefore, implicit in Special Issue No. 3, submitting proximate cause was the element of foreseeability included in the issue of new and independent cause which the court refused to submit.

It is well settled that a litigant is not entitled to have two issues submitted which are opposites, one to the other. Workmen's Loan Finance Co. v. Dunn, Tex. Civ. App. 134 S.W.2d 370 and cases cited. It has also been said where the defendant relied upon the same event, the same circumstances and the same facts to establish its defense of new and independent cause as it did to establish its defense of sole proximate cause that an affirmative submission of the latter defense would embrace every conceivable element of the former and the court would not be required to submit the former. Dallas Ry. Terminal Co. v. Stewart, Tex. Civ. App. 128 S.W.2d 443. This rule was applied where issues of unavoidable accident and sole proximate cause were submitted and an issue of new and independent cause refused in Dallas Ry. Terminal Co. v. Latham, Tex. Civ. App. 143 S.W.2d 824 (writ refused, W.O.M.) and where an issue of unavoidable accident was submitted and one of new and independent cause refused in Williams v. Rodocker, Tex. Civ. App.84 S.W.2d 556, 558, which did not reach the Supreme Court. The issues of negligence, proximate cause and new and independent cause are separate and distinct issues. Negligence and proximate cause form the basis of liability. New and independent cause is a ground of defense. The fact that findings of negligence and proximate cause would indirectly negative a finding of new and independent cause could not deprive defendant of its right to have its defense of new and independent cause affirmatively submitted; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519; Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; and other authorities cited in Workmen's Loan Finance Co. v. Dunn, supra.

As above pointed out, there was no pleading of any facts showing that the collision was the result of a new and independent cause, the negative of which defendant requested the court to submit. Rule 67, T.R.C.P., expressly provides "that written pleadings, before the time of submission, shall be necessary to the submission of special issues, as is provided in Rules 277 and 279" which refer to "special issues raised by the written pleadings" and "controlling issues made by the written pleadings" respectively. Although the issue of new and independent cause may have been tried by implied consent within the purview of the other portion of Rule 67, yet no amendment of the pleadings was made nor leave to amend requested as therein provided.

Apparently such portion of Rule 67 was not intended to apply to cases where special issues are submitted. Foxworth-Galbraith Co. v. Southwestern Contracting Corporation, Tex. Civ. App. 165 S.W.2d 221, loc. cit. 224 — 1st Col. (DWM). To apply such portion of Rule 67 to such cases would nullify the proviso of the Rule above quoted. For this reason the court did not err in refusing to submit defendant's Special Requested Issue No. 14.

On Motion for Rehearing.