Ingles v. Cohen
| Citation | 543 S.W.2d 455 |
| Decision Date | 12 November 1976 |
| Docket Number | No. 5626,5626 |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
| Parties | Deborah L. INGLES, Individually and as next friend of Joseph M. Ingles, a minor, Appellant, v. Robert T. COHEN, Appellee. |
In this case the Appellant asserts a fatal conflict in the jury verdict. The trial court harmonized the apparent conflict and thereby entered judgment that Appellant take nothing against Appellee. We affirm.
Plaintiff-Appellant Deborah L. Ingles, Individually and as Next Friend of Joseph M. Ingles, her minor son two months of age, brought this suit against Defendant-Appellee Robert T. Cohen and against Defendants Harold Andrew Harwell, Amy Harwell, Susan Cooley, Jean Love, and Frances Foley. This suit was brought under the Wrongful Death Statute, Articles 4671 et seq., Vernon's Texas Civil Statutes.
Plaintiff-Appellant alleged that on or about September 9, 1973, her deceased husband James M. Ingles was an invitee at a swimming facility owned and operated by Defendants Harold Andrew Harwell, Amy Harwell, Susan Cooley, Jean Love, and Frances Foley, said Defendants being hereinafter referred to as 'the owners.' Defendant-Appellee Cohen was also using the same swimming facility, and Plaintiff alleges that 'without keeping a proper lookout said Defendant (Cohen) jumped from a bluff approximately 45 feet in height, and while plunging to the water, struck James M. Ingles, rendering him unconscious and causing his death by drowning.'
The case was submitted to a jury under the Texas Comparative Negligence Statute, Article 2212a, Vernon's Texas Civil Statutes. Appellant contends there is a fatal conflict in the jury's answers to Special Issues.
In answer to Special Issue No. 1, the jury failed to find that Defendant Cohen (a) failed to keep a proper lookout, (b) attempted to jump into the water at a time when a person using ordinary care would not have done so, and (c) failed to warn the deceased James M. Ingles of his approach. In other words, the jury failed to find Defendant Cohen guilty of any negligence.
Likewise in answer to Special Issue No. 3, the jury failed to find that the deceased Ingles failed to keep a proper lookout. That is to say, the jury failed to find the deceased Ingles guilty of any negligence.
The jury found in answer to Special Issue No. 5 that the owners were guilty of negligence in failing to provide sufficient supervisory personnel to protect the safety of persons using the premises, and in answer to Special Issue No. 6 that this was a proximate cause of the occurrence in question.
Then in answer to Special Issue No. 7, which was the comparative negligence question, the jury found: (a) the deceased Ingles was 30% Negligent, (b) the owners were 40% Negligent, and (c) Defendant-Appellee Cohen was 30% Negligent.
The jury found zero damages in favor of Plaintiff-Appellant Deborah L. Ingles, the widow (individually), and $25,000.00 damages in favor of the deceased's minor son.
Based upon the jury verdict, the trial court entered judgment in favor of Plaintiff-Appellant against the owners of the swimming facility in the amount of $25,000.00, and adjudged that Plaintiff-Appellant take nothing against Defendant-Appellee Cohen. Subsequent to said judgment, Plaintiff-Appellant settled with the landowners, and no appeal is sought against said owners. The transcript shows a release of judgment which recites that the owners paid Plaintiff-Appellant $25,000.00, the full amount of the judgment.
Plaintiff-Appellant comes to this court appealing against Defendant Cohen only, asserting a fatal conflict between the jury's answers to Special Issues Nos. 3 and 7a.
As stated above, the jury failed to find in answer to Special Issue No. 3 that the deceased Ingles failed to keep a proper lookout, thereby acquitting the deceased of negligence; whereas, in answer to Special Issue 7a, the jury found the deceased Ingles to be 30% Negligent. Appellant contends this is a fatal conflict which necessitates a reversal and remand for new trial of the case against Cohen. We do not agree.
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