Iley v. Hughes

• Decision Date: 19 March 1958
• Docket Number: No. A-6662,A-6662
• Parties: , 85 A.L.R.2d 1 J. M. ILEY, Relator, v. Sarah T. HUGHES, District Judge, et al., Respondents.
• Court: Texas Supreme Court

Page 648

311 S.W.2d 648

158 Tex. 362, 85 A.L.R.2d 1

J. M. ILEY, Relator, v. Sarah T. HUGHES, District Judge, et al., Respondents.

No. A-6662.

Supreme Court of Texas.

March 19, 1958.

Rehearing Denied April 23, 1958.

Harold W. McCracken, Dallas, for relator.

Mullinax, Wells & Morris, Dallas, for respondent.

CALVERT, Justice.

The question at issue in this original proceeding in this Court is this: Does Rule 174(b), Texas Rules of Civil Procedure, authorize a separate trial of the damage issues and the liability issues in a suit for damages for personal injuries? We hold it does not.

A brief summary of the events leading up to the filing of this proceeding is in order.

Guy O. Hancock sued J. M. Iley for compensatory and exemplary damages for injuries alleged to have resulted from an assault committed by the defendant on the plaintiff by shooting him with a .22-calibre rifle. Iley's principal defense was that Hancock was shot in lawful defense of his property.

The case was tried to a jury and was submitted on special issues. In answer to Special Issues 1 through 8 the jury found that Hancock was struck and injured by a bullet fired by Iley; that at the time he was shot Hancock was on Iley's premises and Iley had not requested him to leave; that the shots were fired by Iley to interrupt Hancock's intrusion on the property and to protect his pecans, but that Iley used more force than was necessary to interrupt the intrusion on the property and to protect his pecans.

In answer to Special Issue No. 9 the jury found that $3,000 would reasonably compensate the plaintiff for past medical and hospital expenses, reasonably and necessarily incurred as a proximate result of the shooting.

Special Issue No. 10 subbmitted the question of general damages for diminished earning capacity, past and future, and for physical pain and mental anguish suffered in the past and to be suffered in the future. Special Issue No. 11 inquired whether Iley acted with malice in firing the shots. Special Issue No. 12 asked the jury to fix the amount that should be awarded as exemplary damages if it was found that Iley acted with malice. The jury was unable to agree on answers to Issues 10, 11 and 12.

Following discharge of the jury Iley filed a motion for a mistrial. Hancock filed a motion offering to waive any claim to exemplary damages, asking that an interlocutory judgment be entered in his favor on the jury's answers to Issues 1 through 9, and that a jury be empaneled to try the issue of general damages separately.

The trial court overruled Iley's motion for mistrial and granted Hancock's motion for an interlocutory judgment on the liability issues and a separate trial of the damage issue. Trial of the damage issue was imminent when we granted Iley leave to file a petition for writ of mandamus in this Court. Upon granting leave to file we entered an order temporarily restraining and enjoining the Judge of the 14th Judicial District from proceeding to trial on the severed damage issue.

In this proceeding Iley seeks a writ of mandamus directing the respondent District Judge to set aside her order for a separate trial of the damage issue and to declare a mistrial of the case of Hancock v. Iley. The respondent, Hancock appears here by counsel in defense of the action of the District Judge. He assets that the action of the District Judge is authorized by Rule 174(b), T.R.C.P. All parties agree that the precise question is one of first impression in this state. In deciding it we attach no controlling significance to the fact that the order for a separate trial of the damage issue was entered after a verdict was had on the liability issues. Our conclusion would be the same if the separate trial had been ordered before trial of any issue had been undertaken.

Rule 174(b) reads as follows:

'(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues.'

There are strong arguments supporting respondents' position, some of which may be noticed.

On its face and by its literal wording the Rule would seem to authorize a separate trial of the damage and liability issues in a personal injury suit. It authorizes a trial court 'in furtherance of convenience or to avoid prejudice' to order a separate trial 'of any separate issue or of any number of * * * issues', and we have said that the discretion to require severances and separate trials conferred on trial courts by this and other Rules is 'about as broad as language could make it'. Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731, 735.

The Rule has been interpreted as conferring authority on trial courts to try separately certain other types of 'issues'. In Shelton v. Belknap, Tex.Civ.App., 275 S.W.2d 174, reversed Tex., 282 S.W.2d 682, a suit for damages for wrongful death, the issue of whether the plaintiff was married to the deceased and therefore entitled to maintain the suit was tried separately, apparently without question. In Hernandez v. Light Publishing Co., Tex.Civ.App., 245 S.W.2d 553, writ refused, a suit for damages for personal injuries, the Court stated that the trial court had properly tried in limine the question of whether the plaintiff was an independent contractor and thus entitled to a recovery of damages or an employee of the defendant whose only right of recovery was under the Workmen's Compensation Law. Vernon's Ann.Civ.St. art. 8306 et seq. In Meridith v. Massie, Tex.Civ.App., 173 S.W.2d 799, writ refused, a suit for damages for alienation of affection, the Court specifically approved the action of the trial court in requiring a separate trial in limine of an issue of limitations. See also H. Rouw Co. v. Railway Express Agency, Tex.Civ.App., 238 S.W.2d 223, writ refused, in which an issue of limitations was tried separately. In Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, writ refused, a suit to establish a right to a share of the net profits of a business and for an accounting, the trial court, apparently without challenge, tried separately the issue of the plaintiff's right to share in the profits of the business. In Cone v. Cone, 153 Tex. 149, 266 S.W.2d 860 and Lesage v. Gately, Tex.Civ.App., 287 S.W.2d 193, writ dismissed, the trial court tried the issue of divorce in advance of a trial of the property rights of the parties, but separate trial of like issues was held unauthorized in Pelham v. Sanders, Tex.Civ.App., 290 S.W.2d 684.

Others of the Rules specifically authorize separate trial of damage issues in particular situations. When a cause of action is unliquidated judgment by default may be entered on liability issues but proof is required on damage issues. Rule 243, T.R.C.P. On motion for summary judgment the Court may render an interlocutory judgment on issues of liability although there is a genuine fact issue of damages which must be tried. Rule 166-A, T.R.C.P.

Rule 174(b) is in the exact language of Federal Rules of Civil Procedure Rule 42(b), 28 U.S.C.A., and Rule 42(b) has been interpreted by Federal courts to authorize separate trial of damage issues. Rickenbacher Transp., Inc., v. Pennsylvania R. Co., D.C., 3 F.R.D. 202; Nattles v. General Accident Fire and Life Assurance Corp., 5 Cir., 234 F.2d 243, 247.

Giving full weight to the foregoing arguments in support of respondents' position, we nevertheless feel that they are overborne by stronger considerations of long standing policy and practice in this state.

Our courts have always frowned upon piecemeal trials, deeming the public interest, the interests of litigants and the administration of justice to be better served by rules of trial which avoid a multiplicity of suits. See cases infra.

By refusing to interpret Rule 174(b) to permit separate trials of liability and damage issues in this type of case that Rule and its interpretation is kept harmonious with our interpretation of Rules 434 and 503. We have held that the broad language of those Rules directing reversal of only that part of a judgment affected by error, 'where the issues are severable', does not permit of a disassociation on subsequent trial of liability and damage issues through severance and reversal as to only one or the other. Texas Employers' Ins. Ass'n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929; Fisher v. Costal Transport Co., 149 Tex. 224, 230 S.W.2d 522; Waples-Platter Co. v. Commercial Standard Ins. Co., Tex.Sup., 294 S.W.2d 375.

If Rule 174(b) were now interpreted to permit separate trial of liability and damage issues, on what basis could be later deny to a trial court the right to try only the primary negligence issues? Or the contributory negligence issues? Or, more appropriately perhaps, the issue of unavoidable accident, since a finding that an accident was unavoidable would ordinarily relieve the defendant of liability?

Prior to adoption of the Rules of Civil Procedure in 1941 a separate trial of issues as here attempted would not have been countenanced. Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868; Schuhmacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; Phoenix Assurance Co. of London v. Stobaugh, 127 Tex. 308, 94 S.W.2d 428; Davis v. Morris, Tex.Com.App., 272 S.W. 1103; Farmers' Mill & Elevator Co. v. Hodges, Tex.Com.App., 260 S.W. 166; Texas & N. O. R. Co. v. Weems, Tex.Civ.App., 165 S.W. 1194, no writ history. It could hardly have been contemplated that Rule 174(b) would be interpreted to work such a radical departure from long settled practice.

In Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 104, we declined to adopt or apply in negligence cases a method of special issue submission, approved in other types of cases, on the ground that there was a universal practice at the bar of submitting...