Eubanks v. Winn

• Decision Date: 15 November 1967
• Docket Number: No. B--150,B--150
• Citation: 420 S.W.2d 698
• Parties: Henry EUBANKS et ux., Petitioners, v. W. H. WINN, Respondent.
• Court: Texas Supreme Court

Page 698

420 S.W.2d 698

Henry EUBANKS et ux., Petitioners, v. W. H. WINN, Respondent.

No. B--150.

Supreme Court of Texas.

Nov. 15, 1967.

John H. Holloway, Houston, for petitioners.

Fulbright, Crooker, Freeman, Bates & Jaworski, L. S. Carsey, Houston, for respondent.

GREENHILL, Justice.

In this damage suit growing out of a twocar collision, the jury answered all the liability issues in favor of the defendant, W. H. Winn, and found that the plaintiffs, Mr. and Mrs. Henry Eubanks, had been damaged in a sum considered by them to be grossly inadequate. The jury's answers totaled $1,600 for plaintiffs' pain and suffering, medical expenses, loss of earnings, and inability to perform household duties. As will be developed below, a judgment was ultimately entered for the plaintiffs for the amount found by the jury plus the stipulated property damages. The plaintiffs were dissatisfied and appealed. The Court of Civil Appeals affirmed. 411 S.W.2d 60. The plaintiffs Eubanks are petitioners here. We shall refer to the parties as they were in the trial court.

The jury found that the defendant was not negligent in any respect. Following the jury's verdict, several moves and countermoves were made. Upon the court's receipt of the verdict, the plaintiffs moved to disregard the answers of the jury favorable to defendant, and that having done so, they moved the court to declare a mistrial. In the alternative, they moved to disregard such findings and for a judgment based on the jury's answers to the damage issues. On April 18, the court entered a judgment overruling these motions and decreeing that plaintiffs take nothing.

The plaintiffs filed an original and an amended motion for new trial. The amended motion contended that there was both no evidence and insufficient evidence to support the jury's answers to the issues absolving the defendant of negligence as to lookout, speed and brakes. It also had assignments, among other things, based on defendant's jury argument, jury misconduct, and as to alleged grossly inadequate damages. The Prayer of the amended motion for new trial was that 'the judgment heretofore entered, and the verdict of the jury, be in all things set aside, and That plaintiffs be granted a new trial upon all issues herein' and for general relief. (Emphasis ours.) It will be noted that the prayer was not for judgment for $1600 or any other sum upon disregarding the answers to the liability issues.

Thereafter the Defendant made a motion to set aside the judgment entered in His favor, and he moved that judgment be rendered in Plaintiffs' favor for the amount of damage found by the jury. In it he waives the jury findings favorable to him on the liability issues and 'moves the Court not to consider the answers of the jury to the liability issues.' It will be noted in the 'order and final judgment' set out below, the court granted this motion of the defendant. The parties are at odds as to the legal effect of the order. Ultimately, it set aside the take-nothing judgment of April 18 and entered judgment for plaintiffs. The plaintiffs contend that it granted a motion for new trial and then entered a new judgment. The defendant disagrees. The order reads:

'ORDER AND FINAL JUDGMENT

'BE IT REMEMBERED that on the 30th day of May, 1966 came on to be heard plaintiffs' amended motion for new trial and matters related thereto, and came the plaintiffs by and through their attorney of record and came the defendant by and through his attorneys of record and full hearing thereon was had in open court, And it appearing to the court that the said motion should be granted on the grounds assigned in paragraphs I, II, and III of plaintiffs' amended motion for new trial, relating to the jury's answers to Special Issues No. 1, 3 and 5 concerning the liability of defendant, only and overruled as to all other grounds alleged therein, it was therefore ORDERED, ADJUDGED and DECREED by the court that the judgment heretofore entered on April 18, 1966 should be and is hereby cancelled, vacated and set aside. Plaintiffs' amended motion for new trial is in all other respects overruled.

'Further be it remembered that on the said 30th day of May, 1966 came defendant, William H. Winn, by and through his attorneys of record, And after the court had made known its intention to sustain plaintiffs' amended motion for new trial on certain grounds as set out above but before the court had made any docket entry or entered any written order the defendant filed a written motion to set aside the judgment previously rendered on April 18, 1966 that plaintiffs take nothing and in writing waived the advantage gained by the 'we do not' answers of the jury to Special Issues Nos. 1, 3 and 5 and consented to and moved the court to enter a judgment for plaintiffs for the amount of damages found by the jury in answer to Special Issues Nos. 7, 8 and 9 and for costs of court, irrespective and regardless of the other findings of the jury, and the court being of the opinion that said waiver and motion had the effect of admitting liability and confessing judgment herein for the purposes of this hearing only, and the same as if the jury had answered 'we do' to Special Issues Nos. 1, 2, 3, 4, 5, and 6 instead of 'we do not,' and being further of the opinion that said motion of defendant should be in all things granted.

'It is accordingly, ORDERED, ADJUDGED and DECREED by the court that the said motion of defendant referred to in the preceding paragraph be and the same is hereby in all things granted; that plaintiffs, Henry Eubanks and wife, Ila Ruth Eubanks, do have and recover of and from defendant William H. Winn, the sum of * * *.' (The order entered judgment for the amount of damages found by the jury plus the stipulated property damages and taxed court costs against defendant.) (The emphasis above is ours.)

Because of the alleged gross inadequacy of the award, plaintiffs strenuously objected to this order granting them judgment. They have maintained their objections on appeal. In affirming the judgment, the Court of Civil Appeals at Waco held that the court's order did not grant a new trial, but merely indicated that the trial judge set aside the previous judgment, then gave effect to defendant's motion waiving favorable jury findings and granted judgment for plaintiffs. The court further held that the damages were not inadequate, and that the trial court did not err in rendering judgment for plaintiff under these circumstances, despite the jury verdict favoring defendant.

The order and judgment set out above is unique and difficult to interpret. The judgment recites that it was the trial court's opinion that plaintiffs' motion for new trial Should be granted on certain grounds; and it is capable of the construction that the motion was granted in part but overruled in part. Then the judgment proceeds to grant defendant's motion and to set aside the previous judgment. It set aside the jury's answers to the liability issues. Then based on the defendant's waiver of the answers in his favor, the court enters judgment for plaintiffs on the damage issues. Such an order is foreign to our practice and cannot stand.

The issues of liability and of damages in cases such as these are elements of an indivisible cause of action and may not be tried piecemeal. Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956). The problem was reviewed at length in Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958); and the Court wrote that contested issues of liability and damages were to be tried together. The logic of that opinion is that damages in cases such as these should be fixed by the same jury which decides the issues of liability.

The holdings in the Waples-Platter Co. and Iley cases would preclude a trial court from granting a motion for new trial on either the issue of liability or damages alone. We are not here dealing with other severable issues. If a new trial is to be granted in a case such as this, it must be a complete new trial, even though the motion for new trial was granted on points relating solely to liability and not to damages, or vice versa. In this case, the trial court stated in his judgment that he had made known his intention to grant plaintiffs' motion for new trial at least in part, and his order stated that this motion Should be granted on certain grounds. If the plaintiffs were entitled...