Robertson Tank Lines, Inc. v. Sawyer, 285

• Decision Date: 31 May 1967
• Docket Number: No. 285,285
• Citation: 416 S.W.2d 886
• Parties: ROBERTSON TANK LINES, INC., et al., Appellants, v. J. A. SAWYER, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 886

416 S.W.2d 886

ROBERTSON TANK LINES, INC., et al., Appellants, v. J. A. SAWYER, Appellee.

No. 285.

Court of Civil Appeals of Texas.

Corpus Christi.

May 31, 1967.

Rehearing Denied June 29, 1967.

James W. Mehaffey, of Keith, Mehaffey & Weber, Beaumont, for appellants.

Fred Galindo, of Hardy, Galindo & Sharpe, Brownsville, for appellee.

OPINION

GREEN, Chief Justice.

This is a common law damage suit for personal injuries alleged to have been sustained by plaintiff-appellee in a collision between his car and a tank truck owned by defendant-appellant Robertson Tank Lines, Inc. and being driven in the course of his employment by its employee, defendant-appellant Briones. After the parties had closed their evidence, the case was duly submitted to the jury on issues of negligence of the defendants, contributory negligence of plaintiff, and damages. The jury, after due deliberation, announced to the court that they were ready to report. Thereupon, the jury being in open court, with the judge, the parties and their counsel present, the court asked the jury whether they had reached a verdict, to which the foreman replied that they had, and the verdict, signed by the foreman, was delivered to the court and the answers to all issues read aloud in open court. There was no request for a poll of the jury. After having read the answers, the trial court without accepting the verdict and before excusing the jury, retired into a consultation room with the attorneys for both parties to discuss with them the matter of a possible conflict in certain answers.

The jury had answered all issues of contributory negligence favorable to plaintiff. All issues of primary negligence of the defendants were answered favorably to defendants except that the jury found from a preponderance of the evidence, in answer to special issues eleven, twelve and thirteen, that (11) defendant truck driver on the occasion in question failed to timely apply the brakes of the truck, (12) which failure was negligence, and (13) which negligence was a proximate cause of the collision in question.

In answer to issue No. 21, the jury found from a preponderance of the evidence that immediately prior to the collision in question Briones, the truck driver was faced with a sudden emergency, and, to issue No. 22, that acting upon such sudden emergency Briones thereafter used the degree of care which a person of ordinary prudence would have used under the same or similar circumstances, taking into account the existence of such sudden emergency. The term 'sudden emergency' was defined to mean 'an emergency which arises suddenly and unexpectedly, without having been proximately caused by any negligence on the part of Felix Briones and which called for immediate action on his part without time for deliberation.'

In the conference between the court and counsel, the attorneys for plaintiff argued that there was no irreconcilable conflict between the answers to issues 11, 12, and 13 on the one hand, and issues 21 and 22 on the other, while defense counsel contended that there was such conflict. We copy from the judgment the specific findings of the court as to what next occurred:

'The Court was of the opinion at that juncture of the trial that since there might be a conflict in the findings of the verdict in its then form and since the Jury was still in the Jury Box available for further determination, the Jury's attention should be called to the apparent conflict between its Answers to said Special Issues Numbers 11, 12, and 13 and Special Issues Numbers 21 and 22 for the Jury's further deliberations. The Court was further of the opinion at that time that, in the absence of objection by the parties, the referral of the verdict to the Jury for further deliberations could be done without prejudice to any of the rights of the respective parties and that a full study of the legal points involved with respect to the verdict in its then form and as finally received and filed could be postponed for later decision in the Final Judgment as Plaintiff and Defendant might be entitled to rights or judgment by virtue of either of the findings of the jury.

'The Court then and there communicated his opinions and suggested procedure to the attorneys for the Plaintiff and Defendant and, no objection being made, the Court and attorneys then returned to the Courtroom and the jury was instructed by the Court that there was a conflict between Special Issues 11, 12, and 13, and Special Issues 21 and 22, and the Court and counsel then retired from the jury deliberating room, which was held in the Courtoom and the jury proceeded to deliberate further upon said Special Issues and thereafter announced to the Court that they were ready to return a verdict and the verdict was returned and filed as follows:'

All answers previously made were unchanged except the answer to special issue No. 13, which was changed from 'we do' to 'we do not', so that the jury answered that they did not find from a preponderance of the evidence that the negligence of the truck driver in failing to timely apply the brakes was a proximate cause of the collision. Accordingly, the verdict did not find any negligence of defendant to be the proximate cause of the collision.

This verdict was delivered in open court by the foreman to the court, the answers to issues 11, 12, 13, 21 and 22 were read aloud in open court, there was no request to poll the jury, the jury was discharged, and the verdict was delivered by the court to the clerk for filing,...