J. M. Radford Grocery Co. v. Andrews

• Decision Date: 20 March 1929
• Docket Number: (No. 1206-5220.)
• Parties: J. M. RADFORD GROCERY CO. et al. v. ANDREWS et al.
• Court: Texas Supreme Court

15 S.W.2d 218

J. M. RADFORD GROCERY CO. et al. v. ANDREWS et al.

(No. 1206-5220.)

Commission of Appeals of Texas, Section A.

March 20, 1929.

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

Action by Poney Andrews and others against the J. M. Radford Grocery Company and others. Judgment on special issues for plaintiff was affirmed in part and in part reversed in the Court of Civil Appeals (5 S.W. (2) 1010), and defendants C. C. Abbott and Radford Grocery Company bring error. Affirmed in part, in part reversed, and case remanded for new trial.

Wilson & Randal, Bean & Klett, J. I. Kilpatrick, and W. D. Benson, all of Lubbock, and John H. Awtry, of Dallas, for plaintiffs in error.

Lockhart & Garrard and F. D. Brown, all of Lubbock, for defendants in error.

Statement of Case.

CRITZ, J.

We copy the following statement of the case from the opinion of the Court of Civil Appeals:

"This suit was instituted by the appellee, who will hereinafter be designated plaintiff, against J. M. Radford Grocery Company, hereinafter styled Radford. Radford filed its answer and cross-action, in which it made Herbert Cockrell and C. C. Abbott, operating under the name of South Plains Coaches, Inc., parties defendant, and seeking recovery over against them, in the event the plaintiff recovered against it. Plaintiff then filed his amended petition, in which he made Abbott and Cockrell parties defendant (who will hereinafter be designated Abbott), along with Radford, and sought judgment against all of the defendants for injuries resulting from the concurring negligence of the defendants."

Trial before a jury on special issues was had in the district court of Lubbock county, Texas, and judgment was rendered on the answers in favor of plaintiff, Poney Andrews, against J. M. Radford Grocery Company and C. C. Abbott jointly. The Radford Grocery Company and C. C. Abbott both appealed from this judgment to the Court of Civil Appeals for the Seventh District, at Amarillo, which court affirmed the judgment of the trial court in favor of the plaintiff, against both the Radford Grocery company and C. C. Abbott, but reversed the judgment of the trial court, as to the issues of liability raised as between the two above named defendants. 5 S.W.(2d) 1010. The case is now before this court on two writs of error, one granted on application of the J. M. Radford Grocery Company, and the other on application of C. C. Abbott.

Opinion.

In response to special issues the jury found:

(a) That the driver of the Radford Grocery Company truck was negligent.

(b) That the negligence of the driver of the Radford Grocery Company truck was not the proximate cause of the injury.

(c) That the driver of the bus of C. C. Abbott was negligent.

(d) That the negligence of the driver of the C. C. Abbott bus was the proximate cause of the injury.

(e) That the negligence of both defendants taken together was the proximate cause of the injury.

The trial court entered judgment against both defendants on the above findings.

By proper assignments it is urged by both plaintiffs in error that the above verdict is conflicting, and therefore the judgment based thereon cannot stand. We are of the opinion that the verdict is clearly conflicting as to both defendants.

It is conflicting as to the defendant Radford Grocery Company, in that it finds its driver's negligence was not the proximate cause of the injury, as shown by (b) above, and then, as shown by (e) above, it, in effect, finds that the negligence of the driver of the said Grocery Company truck was a proximate cause of the injury.

It is conflicting as to the driver of the C. C. Abbott bus, in that the effect of the answers to (a), (b), (c), and (d) above is to find that the negligence of the driver of the C. C. Abbott bus was the sole proximate cause of the injury, and under (e) to find that such negligence was not the sole cause of the injury.

It follows that, since the verdict, taken as a whole, is conflicting as to both defendants, it cannot stand. Williams v. Zang, 279 S. W. 815 (Tex. Com. App., opinion approved).

Defendant Abbott requested the trial court to submit the following two special issues to the jury:

(a) "Would the injury, if any, have resulted, but for the alleged negligence of the driver of the Radford Grocery Company truck in failing, if he did fail, to observe the approach of the car driven by Herbert Cockrell?"

(b) "Would the alleged injury have resulted but for the alleged negligence, if any, of the driver of the Radford Grocery Company truck, in failing, if he did fail, to use ordinary care in turning his car to the right, if he did so turn it?"

The refusal of the trial court to submit the above two special issues is assigned as error in ...