H.E. Butt Grocery Co. v. Paez, 13-87-199-CV

• Citation: 742 S.W.2d 824
• Decision Date: 10 December 1987
• Docket Number: No. 13-87-199-CV,13-87-199-CV
• Parties: H.E. BUTT GROCERY COMPANY and H.E.B. Food Store, Appellants, v. Rosie PAEZ, Appellee.
• Court: Court of Appeals of Texas

Page 824

742 S.W.2d 824

H.E. BUTT GROCERY COMPANY and H.E.B. Food Store, Appellants, v. Rosie PAEZ, Appellee.

No. 13-87-199-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 10, 1987.

Rehearing Denied Jan. 7, 1988.

Rudy Gonzales, Jr., Chris Rodrigues, Chaves, Gonzales & Rodriguez, Corpus Christi, for appellants.

Virgil W. Yanta, Kurgle, Stewart, Dent & Frederick, San Antonio, Stephen A. Moyik, Hartman, Lapham & Moyik, Victoria, for appellee.

Before UTTER, KENNEDY, and BENAVIDES, JJ.

OPINION

UTTER, Justice.

This is an appeal from an adverse jury verdict in a slip and fall case. We affirm the judgment of the trial court.

Appellants' sole point of error asserts that the trial court erred when it instructed the jury not to answer the damage issue unless they answered the liability issues affirmatively, because the instruction improperly advised the jury of the effect of their answers to the issues.

The court's original charge to the jury did not condition the damage issues on an affirmative finding on the negligence issues. However, during the jury's deliberation, the following jury inquiries and court responses occurred:

1. Jury's first inquiry:

"Question whether we can award damages if there is no negligence.

Court's response:

"In reply to your question you are instructed that you are not to answer Special Issue 7 unless:

1. You have answered "We do" to Special Issue 1, 2, and 3.

2. You have answered Special Issue 6(a) at least fifty (50) percent or more."

2. Jury's second inquiry:

"Must both parties be found negligent in order to answer Issue 6 and/or Issue 7."

Court's response:

"In response to your question regarding Special Issue 6, your attention is called to the caption to that issue.

In response to your question regarding Special Issue 7, you are instructed that, contrary to the instruction given you in response to your last question, you are to answer Special Issue 7 without regard to any answers you may have made to any other Special Issue."

The jury answered Special Issues 1, 2, and 3 concerning liability in the affirmative, left Special Issue 6 concerning the comparative negligence of the appellee "blank" as instructed in the caption to that special issue, and answered Special Issue 7 on damages. In response to the jury findings to these special issues, the trial court entered judgment for appellee.

Although the general rule states it is error to submit a special issue conditionally when the effect of such a submission is to inform the jury as to the results of their answers, it has also been held that the court may predicate the damage issues upon affirmative findings of liability. Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 87 (1954); New Trends, Inc. v. Stafford-Lowdon Co., 537 S.W.2d 778, 784 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.). As the Texas Supreme Court stated in Grieger:

where the effect is so obvious that any juror with ordinary intelligence would know its effect, neither the letter nor the spirit of the rule is violated by a charge which assumes such knowledge.... No juror would have been of the opinion that petitioner was liable in damages to respondent if his act was not wrongful. Any juror of ordinary intelligence would have known the legal effect of the answer to Special Issue No. 1 [liability]. The conditional submission of Special Issue No. 2 [damages] did not inform the jury of its legal effect, and, therefore, should not cause a reversal of the trial court's judgment.

Id., 271 S.W.2d at 87.

We conclude that the court did not err in submitting the damage issues conditionally at a subsequent point in the trial, when they could have been conditionally submitted in the original charge. It would have been pointless to require the jury to waste their time and efforts by requiring them to make a finding on damages after they had negatively answered the liability issues. Cf. Wright v. Gifford Hill & Co., 725 S.W.2d 712, 714 (Tex.1987).

In fact, this appears to be the present feeling of the Supreme Court as reflected in its March 10, 1987 revisions of Rule 277 which states: "The court may predicate the damage question or questions upon affirmative findings of liability." Tex.R.Civ.P. 277 (eff. Jan. 1, 1988). Furthermore, even if the trial court erred in doing so, we hold that such error was harmless in view of the court's response to the jury's second inquiry, wherein the court instructed the jury to answer all of the special issues without regard to any answer made as to any other special issue. Moreover, we do not believe that...