Friske v. Graham , 128 S.W.2d 139 ( 1939 )

I do not concur in either the majority opinion, written by Chief Justice SMITH, or the concurring opinion, written by Associate Justice SLATTON.

It is clear to my mind that the verdict upon which relator seeks a judgment by the extraordinary writ of mandamus shows on the face of the record to be a coerced verdict, and therefore not a valid verdict. The majority opinion states in effect that inasmuch as the first two verdicts were rejected by the court and a third verdict accepted by the court, those two verdicts are not a part of the record and cannot be here considered. This might be true if the attorney for relator had not seen fit to enter into a written stipulation with the attorney for respondents as to just what happened with reference to the rejecting of the first two verdicts and incorporating that written stipulation in the record he presents in connection with his application for mandamus. It seems that the attorney for relator wanted to put this Court on notice that the verdict upon which he was relying to secure this extraordinary relief was a coerced verdict and void, unless there was an irreconcilable conflict in the answers as given by the jury in the first two verdicts. It occurs to me that the matter could not be more clearly presented than by stipulation of the parties or their respective attorneys.

In the concurring opinion Justice Slatton contends that there was an irreconcilable conflict in the answers as given by the jury in the first two verdicts, and, of course, if this were true the trial judge properly refused to accept the first two verdicts. On the other hand, Art. 2205, R.C.S. 1925, makes it the ministerial duty of the judge to accept a verdict when presented in open court, as was done in the case at bar, unless the verdict is informal or defective, in which event the court may direct it to be reformed at the bar or, if the verdict is not responsive to the issue submitted, the court may call the jury's attention thereto and send them back for further deliberation. Art. 2207, R.C.S. 1925.

The provisions of Art. 2207, supra, have been very properly construed to authorize the court to send the jury back for further deliberation, also when the trial judge discovers an irreconcilable conflict in the answers.

Let us see if there was an irreconcilable conflict in the answers of the jury in either their first or second verdict. When the jury returned their first verdict into court the judge refused to accept the verdict, but instructed the jury, in effect, to retire and reconcile a conflict between their answers to issues Nos. 3 and 4. These two issues are copied in full in Justice Slatton's concurring opinion, and will not be here set out. By referring to these two issues it will be seen that the jury, in their first verdict, found, in answer to issue No. 3, that Ismiel Montalvo, the driver of defendant's truck, did not fail to apply the brakes, and in answer to issue No. 4, that if Montalvo did fail to apply his brakes it would have been negligence. The jury were instructed not to answer issue No. 4, if they answered issue No. 3, "No." Notwithstanding this instruction, the jury answered issue No. 4; therefore, the court should have ignored the answer to issue No. 4. Furthermore, issue No. 4, being asked conditionally, that is containing the terms, "if any," and "if you have so found," their answer "yes" to this issue was meaningless, inasmuch as they had previously found there was no failure.

As was said by Judge Smedley of the Texas Commission of Appeals, in Traders General Ins. Co. v. Ross, 117 S.W.2d 423, 425, quoting: "Special Issue No. 10 should not have been answered at all, as the jury was told to answer it only in the event that it answered Special Issue No. 9 in the affirmative. But as answered this issue means nothing more than that the jury found that if there was any partial incapacity it was not permanent. It is not to be taken as a finding that there was in fact partial incapacity. Issue No. 11 should not have been answered. The jury was instructed to answer it if it answered Issue No. 10 `no' but, as above shown, it should have given no answer to issue No. 10, because it had answered Issue No. 9 `no.' And like the answer to Issue No. 10, the answer to Issue No. 11 cannot be considered a finding that there was partial incapacity, because the answer, in view of the form of the issue, means that the jury finds that if there was any partial incapacity it continued for 300 weeks. We think, therefore, that there is no finding of partial incapacity and consequently no conflict with the finding of total incapacity of 300 weeks on which the judgment was based."

See also Speer's Law of Special Issues, p. 573, § 444.

Thus it is seen that the trial judge was clearly wrong in concluding that there was an irreconcilable conflict between special issues Nos. 3 and 4, and in refusing to perform his ministerial duty of accepting the verdict.

If the first verdict had been accepted by the trial judge it would have supported a judgment for the defendants, as it would have been a finding of negligence on the part of the defendants, contributory negligence on the part of plaintiff, and a finding against plaintiff on his plea of discovered peril.

Likewise, when the verdict was returned the second time, there was no irreconcilable conflict and the verdict should have been accepted by the court and judgment entered for the defendants. The court refused to receive this verdict, but suggested to the jury that there was a conflict between their answers to special issues Nos. 9, 10, and

11. The jury then retired and changed their answer to special issue No. 9, from "No" to "Yes," and this time their verdict was received.

The trial court was mistaken in believing there was a material conflict between the answers to special issues Nos. 9, 10 and 11.

By their answer to issue No. 9, the jury found that Montalvo did not discover the perilous position of plaintiff's husband, John Friske, in time, by the use of the means at his command, etc., to have avoided the collision. The jury answered special issue No. 10, "Yes," but in view of the conditional form of the issue (paraphrasing the language of Judge Smedley quoted above), as answered this issue means nothing more than that if Montalvo did discover the perilous position of John Friske in time, etc., then and in that event he did not use ordinary care, etc., to have avoided the collision, which finding, of course, is meaningless, in view of the jury finding that he did not make any such discovery.

The jury answered special issue No. 11, "Yes," but (again paraphrasing the language of Judge Smedley), in view of the conditional form of this issue the jury's answer to this issue meant nothing more than if Montalvo did discover the perilous position of Friske in time, etc., and if he did fail after such discovery to use the means at his command, etc., to avoid the collision, then, and in those events, such failure would have been a proximate cause of the collision. This finding was meaningless and did not conflict with issues No. 9 or 10.

Thus the jury having been twice sent back to further consider their verdict, with a positive instruction that their answers were in conflict, which instructions were erroneous and given over the objection of the defendant, the third verdict became a coerced verdict at the hands of the judge, and therefore an invalid verdict and one upon which a judgment could not properly be based. Fort Worth Denver City R. Co. v. Lowrie, Tex. Civ. App. 271 S.W. 263; Davis v. Davis, Tex. Civ. App. 237 S.W. 619.

It is my opinion that if either application for mandamus should be granted herein, it should be the mandamus applied for by respondents in their cross-action. It is no more the ministerial duty of a court to enter judgment on a valid verdict than it is to receive a valid verdict when it is presented to him in open court and in the manner provided for in Art. 2205, supra.

I therefore respectfully dissent to the majority and concurring opinions.