Eubanks v. Winn, 4580
| Decision Date | 19 January 1967 |
| Docket Number | No. 4580,4580 |
| Citation | 411 S.W.2d 60 |
| Parties | Henry EUBANKS et ux., Appellants, v. W. H. WINN, Appellee. . Waco |
| Court | Texas Court of Appeals |
John H. Holloway, Houston, for appellants.
Fulbright, Crooker, Freeman, Bates & Jaworski, L. S. Carsey, Houston, for appellee.
Plaintiffs appeal from judgment in an automobile rear-end collision case. The jury answered all liability issues against plaintiffs, but found damages resulting from the collision.
Plaintiffs filed a motion to disregard the jury findings and declare a mistrial, and alternatively, to disregard the liability findings and render judgment for damages found and stipulated. These motions were overruled, and judgment was rendered on the verdict for defendant. Plaintiffs thereupon filed a motion for new trial attacking the jury findings.
Thereafter the judgment now appealed from was rendered. Reciting, 'It appearing to the court' that the motion for new trial 'should be granted on the grounds' relating to liability findings only, and overruled as to all other grounds alleged in the motion for new trial, this order vacated the former judgment, and overruled the motion for new trial 'in all other respects'. The judgment then recited that on the date of the hearing on the motion for new trial defendant, after the court 'had made known its intention to sustain plaintiffs' amended motion for new trial on certain grounds,' filed a written motion to set aside the original take-nothing judgment, waiving favorable liability findings, and consenting to judgment for the amount of damages found by the jury. Treating the motion as an admission of liability and confession of judgment as if all liability issues had been answered in plaintiffs' favor, the court rendered judgment for plaintiffs in the amount found by the jury, plus stipulated damages.
Plaintiffs assert it was error to grant a new trial and award damages by the same judgment, contending the setting side of a part of the verdict constituted granting a new trial on all issues, including that as to damages.
The judgment, when properly construed, is not one granting a new trial; it merely relates that after the court indicated the intended action concerning the motion for new trial, effect was given to defendant's admission of liability and waiver of favorable jury findings thereon. After vacating the previous judgment the court decreed that plaintiffs' motion for new trial was...
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Eubanks v. Winn
...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 The jury found that the defendant was not......