White v. Munson

• Decision Date: 02 April 1942
• Docket Number: No. 11410.,11410.
• Citation: 162 S.W.2d 429
• Parties: WHITE et al. v. MUNSON et al.
• Court: Texas Court of Appeals

162 S.W.2d 429

WHITE et al. v. MUNSON et al.

No. 11410.

Court of Civil Appeals of Texas. Galveston.

April 2, 1942.

Rehearing Denied May 14, 1942.

Original application for mandamus by Vera White and others against M. S. Munson, as Judge of the Twenty-Third District Court of Matagorda County, and others, to set aside an order setting aside a jury's verdict and declaring a mistrial.

Mandamus granted.

Carter & Stiernberg, of Harlingen, Wm. A. Cline, of Wharton, and R. F. Peden, Jr., of Bay City, for relators.

M. S. Munson, District Judge, answered pro se.

Wood, Morrow, Gresham & McCorquodale, and M. S. McCorquodale, all of Houston, for respondent Phoenix Dairy.

GRAVES, Justice.

In this original application for a writ of mandamus, brought here pursuant to R.S. Article 1824, Vernon's Ann.Civ.St. art. 1824, and Rule 383, Texas Rules of Civil Procedure, relators seek to compel the Twenty-Third District Court of Matagorda County, Texas, and the Hon. M. S. Munson, as the Judge thereof, to set aside an order of that court in cause No. 13,283 upon its docket, styled Vera White et al. v. Phoenix Dairy, entered January 17, 1942, setting aside a jury's verdict therein, after a trial on the facts, and declaring a mistrial, upon a holding that "there was an irreconcilable conflict between findings of the jury on the issues of emergency and negligence on the part of the defendant's drivers of the second and third trucks", and to proceed to further trial and a judgment therein.

The learned trial Judge, in an obliging answer to the petition for the writ, to which the Phoenix Dairy, as the defendant below, had also been made a party, thus more fully states the substance of that holding:

"(1st) The jury in answer to Special Issues 1, 2 and 3 found that Janssen, the driver of defendant's (second) truck, failed to keep a proper lookout; that such failure was negligence, and such negligence was a proximate cause of the collision.

"(2nd) That Janssen operated said truck at a speed greater than was reasonable and prudent, under all the conditions then and there existing along said highway, and that such act was a proximate cause of the collision.

"(3rd) That Janssen drove defendant's truck so close behind defendant's first truck that it created a dangerous situation, and that same constituted negligence, and such negligence was a proximate cause of the collision.

"(4th) That Pasak, the driver of one of defendant's trucks (third), drove so close behind defendant's second truck that it created a dangerous situation; that such act was negligence and a proximate cause of the collision.

"(5th) That Pasak operated defendant's third truck at a greater speed than was reasonable and prudent, under all of the conditions existing then and there along said highway, and that same was a proximate cause of the collision.

"(6th) That in answer to Special Issue No. 55, the jury found that Janssen, the driver of one of defendant's trucks, acted under an emergency. In connection with the issue on emergency, that word `emergency' was defined to mean a condition arising suddenly and unexpectedly and not proximately caused by the negligent act or acts of said Janssen.

"(7th) In answering Special Issues Nos. 57 and 58, the jury found that Pasak was in an emergency, and that said emergency was not caused by the negligence of Pasak.

"The Court held that the effect of the findings of the jury in answer to Special Issues 1-3, inclusive, 11-14, inclusive, and 24-28, inclusive, was to find that the defendant's drivers Janssen and Pasak were guilty of negligence, which proximately caused the collision; and, in answer to Special Issues 55-58, inclusive, that Janssen and Pasak found themselves in an emergency, without negligence on their part, presented an irreconcilable conflict in the answers of the jury; and the Court exercised his judicial discretion in so determining, and in overruling plaintiffs' motion to enter judgment, in declaring a mis-trial, and continuing said cause until the next regular term of Court."

This Court, after consideration of the petition, the answers thereto of both respondents, and the written and oral arguments of each, a full hearing from both sides in open court having also been had on March 26, of 1942, is clearly of the opinion that the facts stated in the petition entitled relators to a measure of the relief sought, and that the challenged order was an improvident one, on two counts:

(1) There was intrinsically no mutually-destructive repugnance between such two sets of findings, under the indispensable legal elements of an applicable emergency, as laid down by our Supreme Court in Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545; see also Alamo Iron Works v. Prado, Tex. Civ.App., 220 S.W. 282; Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., Vol. 4, § 2163, Vol. 1, § 669; Hooks v. Orton, Tex.Civ.App., 30 S.W.2d 681.

(2) The particular issues submitted and the responsive findings upon a declared-upon emergency in this instance, under the pleadings and the undisputed evidence relating thereto, were immaterial anyway. Younger Bros. v. Ross, Tex.Civ.App., 151 S.W.2d 621, writ of error dismissed; Tex. as & N. O. Ry. v. Harris, Tex.Civ.App., 101 S.W.2d 640; Brokaw v. Collett, Tex. Com.App., 1 S.W.2d 1090; Levin v. International-Great Northern R. Co., Tex.Civ. App., 45 S.W.2d 435.

This case reflected an automobile-collision that occurred on the highway between a north-bound car, being driven by relators' deceased husband and father, Earl White, and two...