St. Louis Southwestern Ry. Co. v. Duke, B--262

• Decision Date: 13 December 1967
• Docket Number: No. B--262,B--262
• Citation: 424 S.W.2d 896
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Owen J. DUKE et al., Respondents.
• Court: Texas Supreme Court

Page 896

424 S.W.2d 896

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Owen J. DUKE et al., Respondents.

No. B--262.

Supreme Court of Texas.

Dec. 13, 1967.

Clyde W. Fiddes, Tyler, Albert Tarbutton, Jr., Daingerfield, Ramey, Brelsford, Flock & Devereux, Jack Flock and Michael A. Hatchell, Tyler, for petitioner.

Jones, Jones & Baldwin, Franklin Jones, Marshall, J. Alex Blakeley, Dallas, for respondents.

GREENHILL, Justice.

The decision in this case turns upon applications of the Texas Rules of Civil Procedure dealing with the filing of, or the failure to file, a motion for new trial. After the jury had returned its answers to special issues, counsel for the plaintiffs filed a 'motion for mistrial' because of alleged conflicts in the jury's answers. The motion was overruled, and a judgment was entered upon the verdict for the defendant. The plaintiffs thereafter filed no motion for new trial but sought a reversal in the Court of Civil Appeals on the sole basis of the alleged conflicts. As will be developed below, it is contended that no motion for new trial should be required under the circumstances. It is further asserted that the pleading called a motion for mistrial was in substance a motion for new trial, or that it served that function.

The defendant filed a motion in the Court of Civil Appeals to dismiss the appeal because no motion for new trial had been filed in the trial court raising the question of conflicting answers in the jury's verdict. The Court of Civil Appeals overruled that motion and entered a judgment reversing the judgment of the trial court and ordering a new trial because of the conflicts. 413 S.W.2d 813. We granted a writ of error on the procedural problems.

The action arose out of an automobile-train collision. The jury found the railroad guilty of negligence and also found the driver of the automobile, Mrs. Duke, guilty of contributory negligence. But the jury found that neither the railroad's nor Mrs. Duke's negligence was a proximate cause of the collision, and that the collision was not an unavoidable accident. Counsel for the plaintiffs thereupon moved that the court retire the jury for further deliberations because of alleged conflicts in the above findings. The court overruled that motion and received the verdict of the jury. Ten days later plaintiffs' counsel filed 'plaintiffs' motion for a mistrial made subject to the action of the court on their motion for judgment on the verdict.' It again asserted the conflict in the jury's answers. Its prayer, if the court failed to enter judgment for the plaintiffs on the verdict, was: 'the Plaintiffs respectfully pray the Court to declare a mistrial and set this cause for another trial.' The judgment of the trial court, entered several weeks later, overruled the 'plaintiffs' motion for mistrial'; and, based upon the verdict of the jury, it decreed that plaintiffs take nothing.

The plaintiffs gave timely notice of appeal and filed an appeal bond after judgment was entered. But, as stated, they filed no motion for new trial. And, as stated, the Court of Civil Appeals, after overruling the defendant's motion to dismiss the appeal, reversed the trial court's judgment and remanded the cause for a new trial. We do not reach the question of conflicts in the answers to the special issues upon which the Court of Civil Appeals reversed because of the requirements of the rules of civil procedure which require the filing of a motion for new trial to preserve the error complained of.

A motion for new trial is a jurisdictional prerequisite to appeal from a case tried to a jury, with certain specific exceptions. Rule 324 provides that: ¹

'In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant; nor shall a motion for new trial be required in a non-jury case or in a case where the appeal is based upon some error of the trial court arising after its action upon the motion for new trial. * * *'

None of the above exceptions to Rule 324 are applicable in the instant case. The plaintiffs do not complain of a peremptory instruction; the trial court did not withdraw the case from the jury; there was no motion for judgment non obstante veredicto or to disregard special issue findings. Under these circumstances, a motion for new trial was clearly required as a prerequisite to appeal. Assuming, without deciding, that there was an irreconcilable conflict in the jury answers, it was necessary to file a motion for new trial assigning as error the entry of judgment on conflicting jury findings. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

It is contended that the function of a motion for new trial is to call the attention of the trial court to errors in the trial so that they may be corrected; that the motion filed by plaintiffs did this; and that it would cause unnecessary expense and delay to require that a motion stating in substance the same thing must be filed again at a later time as a motion for new trial. It is asserted that Rule 1, which calls for a liberal interpretation of the rules to obtain substantial justice, should be used to reach that result. This Court, however, in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270 (1936) laid out the conflicting opinions as to whether matters once complained of during a jury trial must be again called to the trial court's attention in a motion for new trial. A line of cases was set out...