Goyne v. McDaniel , 383 S.W.2d 934 ( 1964 )

WILSON, Justice.

Relators, by motion, seek leave to file petition for mandamus to require the trial judge to render judgment on an incomplete jury verdict. The motion is overruled, and leave is denied.

In a personal injury suit arising out of an automobile collision, 21 special issues were submitted. The jury was able to agree on answers to only eight of these. Those answers which are material found plaintiff was not negligent in any respect submitted; that immediately prior to the collision there was a mechanical failure in plaintiff's automobile; that sudden application of brakes by plaintiff immediately before the collision created an “emergency,” defined as “a condition arising suddenly and unexpectedly and not proximately caused by any negligent act or omission” of defendant driver “and which calls for immediate action on his part without time for deliberation”; that after the emergency arose defendant driver did what an ordinarily prudent person would have done under the same or similar circumstances; and the collision was not the result of an unavoidable accident.

Unanswered issues related to defendants’ negligence in several respects and to whether such negligence was a proximate cause.

The trial court declared a mistrial, reciting in the order' that “the verdict of the jury is wholly incomplete and not legally sufficient to support a judgment.” Defendants say the findings on the issues answered entitle them to judgment, and the unanswered issues should be disregarded.

“[A] finding on some of the submitted issues does not defeat a litigant’s right to have other submitted issues answered, merely because such other answers may be conflicting”. Blanton v. E. & L. Transport, 146 Tex. 377, 207 S.W.2d 368, 369. See Panhandle & S. F. Ry. Co. v. Sutton, 125 Tex. 401, 81 S.W.2d 1005, 1007; Le Beau v. Highway Ins. Underwriters, 143 Tex. 589, 187 S.W.2d 73.

Leave to file the petition is denied.