Friske v. Graham ( 1939 )

The writer concurs in the opinion of Mr. Chief Justice SMITH. The respondents, Stevenson and Montalvo, are not entitled to the writ of mandamus for the reasons stated, and for the further reason, that the answers made by the jury, as shown by the jury's first and second reports given to the trial court, presented conflicts upon material issues which nullify each other so that no proper judgment could be entered thereon for the defendants below, the respondents here. This is disclosed by the stipulation signed by the attorneys of record and the court, which accompanies the record before us. Said stipulation recites that the jury reported to the court, that a verdict had been reached, and upon reading the same in open court special issue No. 3, and special issue No. 9, had been answered "No"; all other answers were the same as above set out. Thereupon the trial court advised the jury (over the objection of respondents) that in his opinion the answers given to issues Nos. 3 and 4 were inconsistent and conflicting and retired the jury for further consideration of their verdict. Thereafter the jury returned into court with their verdict, which was the same as before, except the answer to special issue No. 3 had been changed from "No" to "Yes". Thereupon the trial court, at the suggestion of counsel of relator, advised the jury that in his opinion the answers of the jury to special issues Nos. 10 and 11 were inconsistent and in conflict with the answer of the jury to special issue No. 9, and retired the jury to further consider their verdict. Thereafter the jury returned into court their verdict, which was the same as the second report, except the answer of the jury to special issue No. 9 had been changed from "No" to "Yes."

The first report made by the jury contained inconsistent answers to special issues Nos. 3 and 4:

"Special Issue No. 3: Do you find from a preponderance of the evidence that the defendant, Ismiel Montalvo, at the time of the collision in question, failed to apply the brakes on said truck after John Friske started to make a left hand turn across the highway to go into the drive on the west side of the highway? Answer ``Yes' or ``No.'"

The jury answered "No" in their first report.

"If you have answered the last preceding question ``Yes' then answer the following:

"Special Issue No. 4: Do you find from a preponderance of the evidence that such failure, if any, on the part of Ismiel Montalvo to apply the brakes on said truck after John Friske started to make the left-hand turn across the highway, if you have so found, was negligence as that term has been defined to you? Answer ``Yes' or ``No.'"

The jury answered "Yes."

In addition to being inconsistent, the answers made by the jury were not responsive, as the court had charged the jury that "If you have answered the last preceding question ``Yes' (Special Issue No. 3), then answer the following (Special Issue No. 4):"

Moreover, the jury, in both the first and second reports, by their answers to special issues Nos. 8, 9, 10 and 11, found:

"Special Issue No. 8: Do you find from a preponderance of the evidence that John Friske immediately before the collision in question, was in a perilous position? Answer ``Yes' or ``No.'

"We, the jury answer: Yes.

"Special Issue No. 9: Do you find from a preponderance of the evidence that the defendant Montalvo on the occasion in question discovered the perilous position of said John Friske, if you have found that he was in a perilous position, in time, by the use of all the means at his command, consistent with his own safety and the safety of his passengers and truck, to avoid the collision? Answer ``Yes' or ``No.'

"We, the jury, answer: No.

"Special Issue No. 10: Do you find from a preponderance of the evidence that said Montalvo, at the time and place in question, after discovering the perilous position of John Friske, if he did discover it, failed to use ordinary care in the use of the means at his command consistent with his own safety and the safety of his passengers and truck, to avoid the collision and injuries to John Friske? Answer ``Yes' or ``No.'

"We, the jury, answer: Yes.

"If you have answered the last preceding question in the affirmative, then answer special issue No. 11.

"Special Issue No. 11: Do you find from a preponderance of the evidence that such failure on the part of Montalvo to use ordinary care in the use of the means at his command, consistent with his own safety and the safety of his passengers and truck, to avoid the collision and injuries to John Friske, if you have so found, was a proximate cause of the collision? Answer ``Yes' or ``No.'

"We, the jury, answer: Yes."

By the answer to special issue No. 8 Friske was found to be in a position of peril.

The answer of the jury to special issue No. 9, in the first and second reports, found that Montalvo did not discover the perilous position of Friske in time, etc.

However, by the answers of the jury to special issues Nos. 10 and 11, it is found, in effect, that Montalvo, after discovering the perilous position of Friske failed to use ordinary care by the use of the means at his command to avoid the collision and that such failure upon the part of Montalvo to use ordinary care after discovering Friske's perilous position was a proximate cause of the collision.

The finding of the jury by their answer to special issue No. 9, if not destroyed by their answers to special issues Nos. 10 and 11, would constitute a complete defense to the cause of action of relator upon the theory of discovered peril, but such finding has no more dignity than have the findings contained in special issues Nos. 10 and 11. The findings of the jury contained in special issues Nos. 10 and 11, construed in the light of appropriate definitions of "ordinary care" and "proximate cause" which were included in the charge, must mean that, but for the failure of Montalvo to use ordinary care, after he discovered the perilous position of Friske, the collision and the injuries would not have occurred. If these findings be true, then the finding contained in special issue No. 9 cannot be true; they nullify each other. Southwest Bitulithic Company v. Dickey, Tex. Civ. App. 28 S.W.2d 264; Texas Motor Coaches, Inc., v. Palmer et ux., Tex.Sup., 121 S.W.2d 323.

By other findings the jury had convicted the respondents of primary negligence, and that such negligence was a proximate cause. Likewise, the jury had convicted the relator's actor with contributory negligence, and that such contributory negligence was a proximate cause. Thus, the only theory of recovery remaining was that of discovered peril. The issues under that theory being destructive, as we have seen, the trial court could not properly render a judgment upon such a verdict, had the same been received by the court.

It has been ruled in this State that when a case is submitted to a jury upon special issues, and the jury by their answers make conflicting findings upon material issues, the trial court should point out the conflicts and retire the jury to further consider their verdict. Southern Underwriters v. Kelly, Tex. Civ. App. 110 S.W.2d 153. This must be true for the obvious reason that such a verdict cannot support a judgment. And hence, to not allow the trial court to refuse to accept such a verdict and retire the jury for further consideration, in order to allow the jury to arrive at a proper verdict, would be a judicial paradox.