Tennessee Gas Pipeline Co. v. Hartman, 1285
| Decision Date | 22 September 1977 |
| Docket Number | No. 1285,1285 |
| Citation | 556 S.W.2d 616 |
| Parties | TENNESSEE GAS PIPELINE COMPANY, Relator, v. Honorable Percy A. HARTMAN, County Judge, et al., Respondents. |
| Court | Texas Court of Appeals |
This is an original mandamus proceeding. Relator's motion for leave to file was granted on September 15, 1977, and a hearing on the application for mandamus was held on September 20, 1977. The Respondents, although duly notified, did not appear in this Court.
This Court of Civil Appeals has jurisdiction to entertain the application for writ of mandamus under Tex.Rev.Civ.Stat.Ann. art. 1824 (1967) which reads as follows:
"Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require."
This proceeding was brought by Relator, Tennessee Gas Pipeline Company, seeking to compel Respondent, the Honorable Percy A. Hartman, in his capacity as County Judge of San Patricio County, Texas, to enter judgment on a verdict received in a jury trial case styled "C. F. Spiekerman v. Tenneco," Cause No. 2537. The Respondent ordered a mistrial on the sole ground that the jury verdict contained conflicting issues.
In October, 1976, C. F. Spiekerman filed suit in San Patricio County Court against Relator seeking to recover $636.84 for damages sustained by his tractor when Gilberto Rosa, employee of Plaintiff and operator of the tractor, collided with an allegedly obscure pipeline marker owned by Relator.
Plaintiff alleged that Relator was negligent in allowing weeds to grow around and hide the marker and that such negligence was the proximate cause of the accident. Relator denied such allegations and alleged contributory negligence by Plaintiff and/or Gilberto Rosa. Relator further filed a counterclaim for $899.56, the cost of repairing the damaged pipeline marker, and alleged that Plaintiff and/or Gilberto Rosa were negligent, and that such negligence was the proximate cause of the collision and Relator's damage.
The case went to jury trial on August 11, 1977. Trial ended that same day and Respondent submitted nine (9) Special Issues to the jury. The pertinent issues submitted and their respective answers appeared as follows:
On the occasion in question did the Defendant, Tennessee Gas Pipeline Company fail to keep the area in question as free of weeds as a pipeline company of ordinary prudence would have kept the area in question.
Answer: 'Yes' or 'No'.
If you have answered Issue No. 1 'Yes', and only in that event, answer Issue No. 2; otherwise, do not answer Issue No. 2.
Was such failure a proximate cause of the occurrence in question:
Answer 'Yes' or 'No'.
Answer: _______
Do you find from a preponderance of the evidence that on the occasion in question Gilberto Rosa failed to keep such a lookout as a person using ordinary care would have kept?
Answer 'we do' or 'we do not'.
If you have answered Issue No. 3 'we do,' then answer Issue No. 4; otherwise do not answer Issue No. 4.
Do you find from the preponderance of the evidence that such failure was a proximate cause of the occurrence in question?
Answer 'We do' or 'We do not.'
Answer: We do
Do you find from a preponderance of the evidence that on the day in question C. F. Spiekerman failed to inform Gilberto Rosa of the Tennessee Gas Pipeline vent as a person using ordinary care would have done?
Answer: 'He did so fail' or 'He did not so fail'.
Answer: He did so fail
If you have answered issue no. 5 'He did so fail', then answer issue no. 6; otherwise do not answer issue no. 6.
Do you find from a preponderance of the evidence that such failure to inform Gilberto Rosa of the Tennessee Gas Pipeline vent was a proximate cause of the occurrence in question?
Answer: 'We do' or 'We do not'.
Answer: We do
If, in answer to Issues Nos. 2, 4, and 6, you have found that the acts or omissions of more than one person proximately caused the occurrence in question, then answer the following issue; otherwise, do not answer the following issue. For the purpose of your answer to the following issue, negligence includes any act or omission found by you in answers to such issues to have been a proximate cause of the occurrence in question.
What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent?
The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.
Answer by stating the percentage, if any, opposite each name.
Upon the jury's return to the courtroom and delivery of their answers, Respondent read the questions and answers aloud. The foreman of the jury further informed the Respondent that the above findings were unanimous. The jury was then dismissed.
Plaintiff's counsel thereafter moved for a mistrial because of conflict in the answers to special issues. The mistrial was granted.
On August 24, 1977, Relator filed a Motion for Judgment on the Jury Verdict. Said motion was denied and Respondent, Judge Hartman, entered the following order:
"ORDER OVERRULING MOTION FOR JUDGMENT AND DECLARING MISTRIAL
On this the 24th day of August, 1977, came on to be heard Defendant's Motion for Judgment, and it appearing to the Court that the Jury had unanimously answered Special Issues # 1, 3, 4, 5, 6, 7, 8, and 9, and such a verdict being received and accepted by the Court, but the Court being of the opinion that the verdict returned contains issues which materially conflict, it is therefore, ORDERED, ADJUDGED AND DECREED, that Defendant's Motion for Judgment be, and the same is hereby, overruled and, based solely upon the foregoing recital, as to conflicting issues contained in the verdict, a mistrial is declared.
SIGNED AND ORDERED ENTERED this 24th day of Aug. , 1977.
/s/ Percy A. Hartman
PRESIDING JUDGE"
Relator contends that the answers to issues one and seven are not in irreconcilable conflict because the jury's negative answer to the liability issue, issue number one, rendered the jury's answers to the comparative negligence issue, issue number seven, immaterial, and therefore, it was the ministerial duty of the judge to enter a judgment based on the verdict.
It is the well established rule that appellate courts will not review by mandamus an action of the trial court granting a new trial while the trial court still has jurisdiction of the cause. Johnson v. Court of Civil Appeals For Seventh Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961); City of Perryton v. Boyer, 423 S.W.2d 170 (Tex.Civ.App. Amarillo 1968) (mandamus denied); Allan v. Materials Transportation Company, 372 S.W.2d 744 (Tex.Civ.App. Corpus Christi 1963, no writ). The Supreme Court has recognized two exceptions to this rule. First, the trial court's order for a new trial can be set aside by mandamus when the trial court's order granting the motion is wholly void. Second, mandamus will also lie when the trial court has granted a motion for a new trial specifying in the written order as the sole and exclusive ground, the existence of an irreconcilable conflict in the jury's answers when, as a matter of law, no irreconcilable conflict exists. Johnson v. Court of Civil Appeals For Seventh Supreme Judicial District...
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