Texas & N. O. R. v. Harris , 101 S.W.2d 640 ( 1937 )

HIGGINS, Justice

(after stating the case as above).

Appellant objected to the submission of the second issue upon the ground it was not raised by the pleadings or the evidence. For like reason error is assigned to the submission of such issue and to the rendition of judgment in favor of plaintiff upon the finding returned in response thereto.

Upon examination of the pleadings we find such issue is not presented, nor is it raised by the evidence. It is true there is an abundance of evidence offered by defendant showing the north gate was completely lowered before it was struck by the car, but it also shows it was so lowered when the approaching car was 150 or 200 feet away. In other words, defendant’s evidence shows the gate was completely lowered in time for the car to stop before reaching the crossing. On the other hand, the plaintiff’s evidence is to the effect the gate was suddenly lowered and struck the car just as it entered the crossing. However, for the reason to be now stated, it is unimportant whether the issue was raised by the evidence.

An issue not raised by the pleadings is immaterial, and a finding thereon cannot form the basis of a judgment. Brokaw v. Collett (Tex.Com.App.) 1 S.W. (2d) 1090; Levin v. International-Great N. R. Co. (Tex.Civ.App.) 45 S.W.(2d) 435.

Judge Speer, in his work on Special Issues, at section 447, says:

“A finding, however made, as to a fact upon an issue not within the pleadings, is a nullity and will afford, upon the most elementary consideration, no basis for any judgment on the merits.. It can make no difference that the issue was actually submitted to the jury. * * *

“If a finding is for any reason immaterial, however, it can never form the basis for a judgment, and may therefore be ignored. It is no obstacle to a judgment."

And at section 474, Judge Speer says further: “The rule that a judgment non ob-stante veredicto will not be permitted, does not apply where the verdict is with respect to an immaterial matter.” See, also, Robichaux v. Bordages (Tex.Civ.App.) 48 S.W.(2d) 698.

It follows the court should have disregarded the second finding and its supplementary findings, and should have rendered judgment for defendant upon the finding in response to the first issue.

The judgment which should have been rendered upon the verdict will be here rendered.

Reversed and rendered.