San Antonio & A. P. Ry. Co. v. Bowles

• Decision Date: 20 March 1895
• Citation: 30 S.W. 89
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. et al. v. BOWLES et al.<SMALL><SUP>1</SUP></SMALL>

30 S.W. 89

SAN ANTONIO & A. P. RY. CO. et al. v. BOWLES et al.¹

Court of Civil Appeals of Texas.

March 20, 1895.

Appeal from district court, Lee county; N. A. Rector, Special Judge.

Action by Georgia A. Bowles and others against the San Antonio & Aransas Pass Railway Company and another. From a judgment for plaintiffs, defendants appeal. Reversed.

John T. Duncan, for appellant San Antonio & A. P. Ry. Co. O. T. Holt, for appellant Houston & T. C. Ry. Co. H. M. Garwood, for appellees.

KEY, J.

The tracks of the Houston & Texas Central and the San Antonio & Aransas Pass Railways cross each other in the town of Giddings, in this state. On the 20th day of September, 1892, a train on the Houston & Texas Central road collided with a train on the San Antonio & Aransas Pass road at said crossing, and J. W. Bowles, a brakeman on the latter train, was killed. May 18, 1893, appellees, the surviving wife and child of J. W. Bowles, brought this action against both railway companies to recover damages, alleging that the death of Bowles was caused by the negligence of the engineers operating each and both trains. By way of defense, each defendant, among other things, attempted to show that its codefendant was to blame for the accident. Upon a verdict hereafter set out, a judgment was rendered against both defendants for $10,000, and each has appealed.

The verdict reads as follows: "We, the jury, find in favor of the plaintiffs against both of defendants in the sum of ten thousand dollars, — five thousand in favor of Georgia A. Bowles, and five thousand in favor of John Claude Bowles; five thousand to be paid by the San Antonio & Aransas Pass Ry. Co., and five thousand to be paid by the H. & T. C. Ry. Co." This verdict is contradictory, ambiguous, and uncertain, and, in our opinion, cannot be made the basis of any judgment. The first part of it awards to the plaintiffs $10,000 against both the defendants; and, in the absence of anything to the contrary in the verdict, this would be understood as establishing a joint liability for the entire amount. But the latter part of the verdict fixes $5,000 as the amount to be paid by each defendant, and this tends to contradict the first part, and show that it was not the intention of the jury to fix a joint liability for any amount. Disregarding the literal meaning of the language used, the verdict is susceptible of two interpretations, either of which will harmonize its several provisions, but, because it is susceptible of both constructions, it remains subject to the charge of ambiguity. For instance, the jury may have intended to make a joint finding and fix a joint liability against both defendants for $10,000; and the statement that each should pay $5,000 may have been intended as an apportionment between the defendants; so that, if one should be required to pay more than $5,000, the other could be compelled to reimburse it for the excess over that amount. Or it may have been intended to make separate findings against each of the defendants for $5,000, and the expression "against both of defendants in the sum of ten thousand dollars" may have been intended as a statement of the aggregate amount of the two findings. If the verdict will not bear one of these constructions, it contradicts itself and is meaningless. But, construing it either alone or in connection with other parts of the record, we are unable to say which of these constructions should be placed upon it; and the very fact that it admits of two constructions of about equal plausibility is a demonstration of the proposition that it is too indefinite and uncertain to support a judgment, and therefore the judgment rendered upon it must be reversed.

It is contended on behalf of appellees that the latter part of the verdict, fixing $5,000 as the amount to be paid by each defendant, should be treated as surplusage and disregarded; and we are cited to authorities holding that each cotrespasser is liable for the whole damage, and, when there are several defendant cotrespassers, the jury cannot apportion the damages on the basis of the culpability of each cotrespasser respectively, and render separate verdicts for the amounts thus apportioned, and that an instruction so to do is erroneous. Conceding the propositions of law, as just stated, to be correct, it does not follow that, when a jury improperly returns a verdict containing separate findings against two or more defendants, the court can disregard such findings, and render a judgment establishing a joint liability for the aggregate amount of the several sums, although another part of the verdict, considered apart from the erroneous findings, might authorize such a judgment. We know of no rule of law that will warrant the courts in treating as surplusage any part of a verdict merely because the jury ought not to have made such finding and returned such verdict.

Of the cases cited by appellees' counsel, Currier v. Swan, 63 Me. 323, and Shultz v. Hunter, 2 Browne (Pa.) 233, are nearest in point; but neither is shown to be entirely analogous to the case in hand. In Currier v. Swan, supra, there were four defendants, and the jury returned a general verdict against all of them for $80. With the verdict they also returned a separate paper, signed by the foreman, assessing the damages at $5 against one, and $25 against each of the other three defendants. On appeal the general verdict was sustained, and it was held that the paper accompanying it should be disregarded. Neither the paper nor the verdict is copied in the opinion or the statement of the case, but it is said in the opinion that "the jury undoubtedly undertook to apportion among the defendants what part of the verdict each of them, as between themselves, should pay." In the paper referred to, it may have been expressly stated, or words used which clearly indicated, that the purpose was to apportion among the defendants the amount that each ought to pay, without affecting the general verdict fixing a joint liability against each defendant, in favor of the plaintiff, for the entire amount. And, if it was clear or reasonably certain that such was the intention of the jury in this case, the verdict could be sustained. But, constituting but one paper, and worded as the verdict is, another and different construction is about as reasonable and logical, and therefore we cannot hold that it was intended to establish a joint liability for $10,000, or for any other sum. In Shultz v. Hunter, supra, there were three defendants, and the verdict was in the following language: "We, the undersigned jurors, in the above...