Hines v. Parks

• Decision Date: 14 October 1936
• Docket Number: No. 2011-6736.,2011-6736.
• Parties: HINES et al. v. PARKS et al.
• Court: Texas Supreme Court

Page 970

96 S.W.2d 970

HINES et al. v. PARKS et al.

No. 2011-6736.

Commission of Appeals of Texas, Section A.

October 14, 1936.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Mrs. Elsie S. Hines and others against J. F. Parks and others. To review a judgment of the Court of Civil Appeals [68 S.W.(2d) 364], reversing and remanding a judgment of the district court for plaintiffs, plaintiffs bring error and named defendant files cross-assignments of error.

Judgment of the Court of Civil Appeals affirmed.

D. L. Whitehurst, A. Leslie Jackson, and Jos. W. Bailey, Jr., all of Dallas, for plaintiffs in error.

W. H. Reid and John A. Erhard, both of Dallas, for defendants in error.

GERMAN, Commissioner.

A judgment of the district court in favor of plaintiff in error Mrs. Elsie Scott Hines, and against defendant in error J. F. Parks, was reversed and remanded by the Court of Civil Appeals. Mrs. Hines, who will be referred to as plaintiff, in her petition for writ of error presents only the contention that the judgment of the trial court should have been affirmed, and not reversed and remanded. She contends that the Court of Civil Appeals has held that she would have been entitled to an affirmance, notwithstanding the obvious conflict in the jury's findings, provided she had filed motion for judgment notwithstanding the verdict, as provided by article 2211, Revised Statutes 1925, as amended by chapter 77, Acts 42d Leg., 1931, p. 119, § 1 (Vernon's Ann.Civ.St. art. 2211). Judge Walthall, in dissenting opinion, stated that he thought the judgment should have been affirmed, on the theory that the motion filed by the plaintiff was sufficient to meet the requirements of the statute. 68 S.W.(2d) 364. A full statement of the pleadings and the findings of the jury will be found in the opinions of the Court of Civil Appeals.

Defendant in error Parks has filed cross-assignments of error, but this is not sufficient. If he was dissatisfied with the action of the Court of Civil Appeals in reversing and remanding the case, he should have raised his objections in petition for writ of error.

Special issue No. 9, in answer to which the jury found that the consideration for the contract sued upon had failed, was unquestionably raised by the pleadings. There is an obvious conflict between this finding and other findings supporting the plaintiff's case. Notwithstanding this conflict, the trial court disregarded the finding of the jury to special issue No. 9 and entered judgment in favor of plaintiff. The question then is whether or not there was a sufficient compliance with article 2211, as amended, to justify the court in setting aside this finding and entering judgment notwithstanding same.

The article as amended reads as follows: "The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence."

After the verdict of the jury in this case had been received and filed, plaintiff filed the following motion:

"Comes now Mrs. Elsie Scott Hines, feme sole, Plaintiff in the above styled and numbered cause, and moves and prays the Court to render and cause to be entered judgment in favor of the Plaintiff of terms and form or substance of that shown in Exhibit `A' attached hereto and made a part hereof.

"Alternately and in event the Court deems that judgment of the terms, form or substance of that described in said Exhibit `A' is improper, Plaintiff prays and moves the Court to render and enter judgment in the cause in terms and form or substance of that shown in Exhibit `B' attached hereto and made a part hereof."

The judgment which was approved by the court and entered was Exhibit A. It contained the usual recitals concerning the appearance of the parties, announcement of ready, rulings of the court upon demurrers, the trial of the case, the submission of same to the jury, and the return of a verdict by the jury. It then set out verbatim all of the special issues submitted to the jury, including No. 9, and the answers of the jury to each, and then concluded with decree in favor of plaintiff for $2,306 (the amount of damages found by the jury), with interest. There is nothing contained in the judgment showing a disregard of any issue because not supported by the evidence, but the judgment is one upon all of the issues as submitted and answered.

We are of the opinion that there was not a compliance with article 2211, and the court was without authority to enter any judgment other than to declare a mistrial, or in conformity with the answer to special issue in favor of defendant.

Prior to the amendment of article 2211, which amendment became effective August 22, 1931, it was definitely settled that by virtue of article 2209 of the Revised Statutes of 1925, a trial court was without authority to set aside a jury's finding to an issue raised by the pleadings, even though such finding was against the undisputed proof or was without evidence to support it. The rule in such a case was clearly stated in Massie v. Hutcheson, 270 S.W. 544, 545, in an opinion adopted by the Supreme Court, in this language:

"Article 1990, V.S.Tex.Civil Statutes, in its plain language, and as interpreted by the courts of this state, gives an unequivocal answer to this query. That article provides:

"`In all cases where a special verdict of the jury is rendered * * * the court shall, unless the same be set aside and a new trial granted, render judgment thereon.'

"In the case of Waller v. Liles, 96 Tex. 21, 70 S.W. 17, tried upon special issues, the court say:

"`It is deducible from the ruling in that case (Ablowich v. Greenville Nat. Bank, 95 Tex. 429 ), that the findings of the jury upon the issues made by the pleadings in a case, although against the undisputed evidence or without evidence to support them, cannot be disregarded, but must constitute the only basis upon which any proper judgment can be rendered.'

"See, also, Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S.W. 607; Fant v. Sullivan (Tex.Civ.App.) 152 S.W. 515; Swearingen v. Swearingen (Tex.Civ.App.) 193 S.W. [442] 445; Tompkins v. Hooker (Tex.Civ.App.) 229 S.W....