Smith v. Morgan

• Decision Date: 22 November 1950
• Docket Number: No. 12163,12163
• Citation: 235 S.W.2d 938
• Parties: SMITH v. MORGAN.
• Court: Texas Court of Appeals

Page 938

235 S.W.2d 938

SMITH v. MORGAN.

No. 12163.

Court of Civil Appeals of Texas, San Antonio.

Nov. 22, 1950.

Rehearing Denied Jan. 10, 1951.

Heath & Ratliff, and Wm. Kent Ratliff, all of Falfurrias, for appellant.

Paul W. Mason, and Kemp, Lewright, Dyer & Sorrell, all of Corpus Christi, for appellee.

MURRAY, Chief Justice.

This suit was instituted by W. C. Smith as plaintiff against J. S. Morgan as defendant in the County Court of Jim Wells County, seeking to recover damages alleged to have been sustained by plaintiff when his automobile driven by him collided with an automobile being driven by J. S. Morgan. The trial was to a jury and resulted in a judgment that plaintiff take nothing from which judgment W. C. Smith has prosecuted this appeal.

Appellant's first point presents the contention that reversible error was committed in the selection of the jury. The evidence shows that the attorneys for the plaintiff and defendant were each furnished with a list of the propective jurors, and after they had made their challenges the County Clerk and County Judge looked over the list, and the County Judge, in effect, exercised one challenge himself. Thus one man who would otherwise have been on the jury was left off and another man taken in his place. Neither the attorney for the plaintiff nor the attorney for the defendant knew what happened, although it was done in open court and they could have discovered what happened if they had seen fit to check the list. Before the jury read their verdict the County Judge informed the attorneys that he had exercised one challenge, but neither attorney at that time moved for a mistrial and the jury was permitted to render its verdict without complaint from either side. We overrule this point. The attorney for appellant was not diligent in that he failed to discover that a qualified juror had been improperly excused from the jury. He does not now contend that as a result of this conduct on the part of the judge he was required to accept an obnoxious juror. Furthermore, by his failure to move for a mistrial when he was informed as to what had happened he waived the point. Granger v. State, Tex.Cr.App., 31 S.W. 671; Anderson v. State 142 Tex.Cr.R. 384, 154 S.W.2d 482, 483; Smith v. State, 123 Tex.Cr.R. 47, 57 S.W.2d 132; Rule 434, Texas Rules Civil Procedure.

Appellant's next point is that the court erred in overruling his objection to Special Issue No. 3, to the effect that said issue was duplicitous. We overrule this contention because appellant did not make any written objections to the charge, as is required by Rule 272, T.R.C.P.

Appellant's third point is overruled for the same reason.

Appellant's fourth point is that the jury's answer to Special Issue No. 19, to the effect that appellant had not sustained any damage was contrary to the undisputed evidence. We overrule this contention. By the time the jury had reached this issue they had found that the defendant was not guilty of negligence proximately causing plaintiff's damage in any of the respects inquired about, and having done so we may presume that the jury, by their answer to Special Issue No. 19, meant to find that plaintiff was not entitled to recover any damages, rather than that they were actuated by bias or prejudice in answering this issue. Harrison v. Missouri K. T. R. R. Co., Tex.Civ.App., 89 S.W.2d 455; Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Guerrero v. Wright, Tex.Civ.App., 225 S.W.2d 609; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869. Furthermore, in connection with this issue, the judge instructed the jury in effect that the damage would be the reasonable market value of plaintiff's automobile immediately prior to said collision and the reasonable market value immediately after the collision. The evidence was not sufficient to support a finding of what the difference in market value would be, and therefore the jury was justified in answering Issue No. 19, none, even though the plaintiff did testify as to the cost of having the car repaired.

By appellant's last point he raises the question that the trial judge should have declared a mistrial because the jury answered all special issues submitted to them as to defendant's negligence in the negative, and also answered all special issues submitted to them as to plaintiff's negligence in the negative, and then, in answer to Special Issue No. 18, found that the collision was not an unavoidable accident. The answers of the jury to these special issues are not in irreconcilable conflict and the trial judge properly refused to grant the mistrial. There were acts of negligence on the part of the plaintiff and the defendant ant alleged in the pleading which were not submitted to the jury, and we may presume that the jury, in answering Issue No. 18, may have concluded that one of the alleged acts of negligence of the parties which had not been submitted to them was a proximate cause of the collision, and therefore that the collision was not an unavoidable accident. Especially is this true where no statement of facts relating to these acts is brought up with the record. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Big Six Oil Co. v. West, Tex.Civ.App., 137 S.W.2d 950; Howard v. Howard, tex.Civ.App., 102 S.W.2d 473; Littlerock Furniture Mfg. Co. v. Dunn, Tex.Sup., 222 S.W.2d 985. Furthermore, it is apparent that the plaintiff could not recover in view of the answer of the jury to the question, regardless of how they answered Issue No. 18. Having found that the defendant was not guilty of any acts of negligence, it became immaterial whether the collision was an unavoidable accident, and, regarless of how the jury would have answered this issue, the plaintiff could not recover. Under such circumstances a mistrial should not be ordered. Farmer v. Denton, Tex.Civ.App., 231 S.W.2d 908; Littlerock Furniture Mfg. Co. v. Dunn, Tex.Sup., 222 S.W.2d 985; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869; Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368.

Accordingly, the judgment of the trial court is affirmed.

POPE, Justice.

I concur in the majority opinion, but wish to express separately my views in connection with the matter of conflicts as presented by this case. I believe the judgment should be affirmed in the face of the point urging that there is a conflict in the findings.

First: The verdict is susceptible of a construction which permits no room for a conflict. The collision could have occurred from any one of four different causes: It could have occurred from one or more of the acts of negligence with which the plaintiff charged the defendant, from one or more of the acts of negligence with which the defendant charges the plaintiff, from an unavoidable accident, of from a cause not alleged and claimed by either the plaintiff or the defendant, but the cause in fact. Unless we are content to close our eyes to what so frequently occurs in the trial of a case, we may not assume that the cause was fully pleaded. We may presume that the court submitted every issue pleaded, but this does not mean that every correct issue was in fact pleaded. The jury believed there was no negligence on the issues pleaded and submitted. They also believed that the accident was not unavoidable. This verdict means that the accident resulted from fault of one of the parties which was not pleaded. So believing they certainly would find that it was not an unavoidable accident. There is no statement of facts pertaining to the acts of negligence before us, and while I am content to presume the court submitted everything pleaded and raised by the evidence, I am not content to presume the court submitted everything not pleaded but raised by the evidence. The jury, it is believed, seized upon the cause in fact which was omitted from the pleadings, but inferable from the evidence. Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521.

That there may be negligence in fact, as distinguished from negligence pleaded and relied upon, is also recognized in Galveston, H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534, 538, which case struck down a general charge, saying: 'We must look at the court's charge as practical experience teaches that a jury, untrained in the law, would view it; and, so regarding it, we are of opinion that a jury might not have understood that the general denial made the issue of unavoidable accident, or that the injury had occurred in a manner not alleged and claimed by the plaintiff, neither of which issues was expressed in the charge of the court.' (Italics mine.)

Unless this is the rule, we require a jury to ignore the cause in fact by reason of the straight jacket in which they are placed by the pleader.

Second: The only way the plaintiff could win his cause of action was by the discharge of his burden of proof both on his primary negligence issues and on the unavoidable accident issue. He obtained the necessary favorable answer to the issue on unavoidable accident by a finding that the collision was not unavoidable, i. e., somebody was negligent. He failed on his primary negligence issues because the jury found the defendant was not negligent. The plaintiff, in other words, did not have a single affirmative answer upon which he could win his case. It is argued that the finding that the collision was not an accident raises a conflict. The plaintiff is in no position to claim this conflict as we shall demonstrate. The jurors by their answer to unavoidable accident, have said that either the plaintiff was negligent, or the defendant was negligent, or both of them were negligent, because they have said that the accident could have been avoided.

We shall assume that they mean by this that the plaintiff was negligent. In that instance, the plaintiff still could not win because he had unfavorable answers on his primary negligence issues and also the jurors, we shall assume,...