*1 Arhelger, Jr. Alex Et Al v. Bradford Ruth Verlee 30, 1960. A-7594. Decided November No. Rehearing December Overruled 772) (340 2d Series Bruhl, Llano, Lawrence of Lieck & Lieck Charles J. Lieck, Antonio, petitioner. for of San Sparks
Brown, Barber, Austin, & Erwin and Will G. respondent. opinion
Mr. Justice Smith delivered Court. brought against Bradford Arhelger, Mrs. suit Alex Jr. damages personal injuries to recover and for the death of her that resulted from an husband automobile collision. following findings: made the Arhelger (a) respondent negligent failing to operating keep proper partially lookout and in his automobile road, negli- on the left-hand side of the and that each such act of gence collision; negligent
(b) failing keep D. Bradford was proper failing under lookout; his automobile to have proper partially on the left-hand control; operating his automobile road; acts of that each of such side of *2 collision; and of the proximate accident. (c) an unavoidable that the collision was alleging irre- an mistrial filed a motion for Mrs. Bradford findings. court respect The trial in to these conflict that motion and entered concilable respondent judgment overruled Arhelger judgment has affirmed jury’s been the verdict. That on Appeals. 2d 317. by the of Civil 328 Court S.W. controlling not question presented here whether or is The special are in irrecon- issues such answers of the judgment on the verdict must entered cilable conflict for a new trial. be reversed 89, 148
Admittedly, Texas Inc. v. 136 A.B.C. peti directly point fully supports (1941), 2d 392 is S.W. contention, question now us is whether tioners’ and the before or later case of Little Rock Furniture Co. v. not the silento. 2d A.B.C. sub 222 overruled S.W. again approved con- Rock this the statement In Little court Howard, 473, 475, ref., viz: tained in Howard v. wr. taking finding is, alone “The in such a whether test case instance, entered in favor of in the one should be other, plaintiff; taking it alone in the should the defendant.” entered favor of said: court then test, must consider each of apply this court “To alleged disregarding conflict, con- to be claimed answers taking all of the rest of flicting into consideration answer but considered, verdict, one of the answers would re- if so of the and the other would in favor quire a defendant, then the of the answers require a favor party seeking that the to set fatally It is essential in conflict. are ground point of conflict must be able to a verdict aside conflicting jury, in answers of the connection of the that one out except with it con- the issue which of the verdict the rest with entry necessarily requires the of a different flicts, the court has entered.” from that which defendant. judgment for the rendered Here, the court has — a between conflict conflicts two are confronted with finding that the de- and the accident of unavoidable injuries, and cause of the proximate awas fendant’s finding accident a conflict between proximate cause of finding plaintiff’s that the injuries. first con case to the the test of unavoidable accident but flict. If we all of the rest of take into consideration required the defendant would be because cause of the collision. disregard the that the defendant’s *3 proximate of the rest of cause the collision and consider all a verdict, required judgment also a for the defendant would be negli that the defendant there would be no was because gent negligence proximate a cause the col or that such was lision. the test to the second conflict:
finding of all of the unavoidable accident and consider rest of verdict, judgment required a for the defendant would be negligence plaintiff’s proxi- because of the that the was a disregarded mate cause of the collision. If we proximate cause of the collision and consider all of the rest of we are left with findings proximate that the defendant’s a was cause of the collision and that the collision an was unavoidable acci- Quite obviously, judgment dent. in that situation a could not be rendered for the defendant. The situation which then con- though just fronts us is as had found that the negligent, proxi- was not that the a defendant’s was mate cause of the collision and that the collision was an un- Quite obviously, avoidable accident. in that a situation could not be rendered for the defendant. The situation which though just then confronts us is as had found that the negligent, was not that the defendant’s a cause of the collision and that the collision an findings unavoidable accident. Such are themselves in fatal con- support judgment. flict and Pageway will not a Bransford v. Coaches, 471; 104 S.W. 2d Texas Interurban Railway Hughes, App., Co. v. Comm. 448. application
The result of a strict of the Little Rock test findings in three situations in the before us is that case required, in the for the defendant would be but party. rendered for situation no could be fourth situation, that could rendered order be In fourth is true that under no conceivable one of mistrial. It be application rendered for of the test could a be approving may the test plaintiff, and it conceded that be case, Howard in the announced Howard v. opinion application an of the test would court was of the always resolving findings all instances result in that in so plaintiff or the de- could rendered either for the findings clearly presents jury fendant. The instant case which particular concept To that ex- indicate that was unsound. permit qualified, for cannot tent the Little Rock rule must be we that an a verdict to stand in such when are conflict application develops of the Little Rock rule a situation which party. could not be entered for either conclude, therefore, Inc. v. that A. B. C. was not overruled Little Rock Furniture Co. consequently B. and that here is ruled the A. decision case. Stores judgments and this courts below are reversed remanded to the trial court for another trial.
Opinion delivered November
*4
Culver,
joined by
Griffin, Greenhill,
Mr. Justice
Justices
dissenting.
Hamilton,
and
Admittedly
89,
A. B.
Inc.
v.
136 Texas
(1941)
directly
supports
point
148
2d 392
is
the
and
S.W.
by
majority.
expressly
However,
result
reached
the
I would
depart
holding,
by
from that
as I think this court has done
im-
plication
Furniture
v.
Texas
Co.
148
197,
(1949),
apply
222
2d 985
and
the
set out.
S.W.
rule therein
analogous
case,
present
the facts were not
to
While
those in the
yet
broad, comprehensive
the rule there stated is
and admits of
misunderstanding.
no
said in Little Rock
Furniture Co.
require
containing
Dunn:
“To
entered on a verdict
conflicting
aside,
answers
be set
the conflict
between
answers must be such
answer
that one
would
a cause
establish
defense,
destroy
of action or
while the other would
it.” This
formerly
rule had
Doherty,
been announced
court
Pearson v.
64,
(1944).
In the us found that case before negligence cause; (2) negligent that was the defendent negligent negligence proxi- was the was cause; (3) mate that the collision an unavoidable accident. disregard then, if rule we of unavoid- able accident and consider the rest of the go against disregard plaintiff. jury’s find- ings negligence against of would still be be rendered plaintiff.
I think this is not as law decided this court but it is sound common Here sense. has lost on the both ground negligence contributory of and on the issue of unavoid- findings charge able accident. While both under the of the court warranted, altogether would not be it would seem reasonable that one or the other must correct. majority says ap- the Little Rock rule cannot be plied if because we of contribu-
tory conflicting findings there remain the of the de- fendant’s and that the collision was the result of an accident, and in such a case a could not be rendered for the nor for the defendant. While we are separate findings, concerned with consisted in actually three the conflict parties negligent that both were party negligent. that neither So that I think the Little Rock applicable principle rule is reasoning. and in sound If the trial provisions court had acted under the of Rule Procedure, Texas Rules of consider, retiring Civil before to re- pointed he would have out that the collision could not party be unavoidable if guilty were and that contrary party guilty neither could be if the collision were unavoidable. The would then resolve the by finding conflict either *5 that there was no part on the party of either or that the collision was not an unavoidable acci- wholly dent. To me it would seem unreasonable that would do In otherwise. either event the defendant would have prevailed and the could not recover. retired argues jury had been if the petitioner The might that there was they have found the conflict consider part plaintiff. There contributory on the
no unavoidable then, says, the she conflict between remain had part of the defendant accident they again further consideration for the court returned not an that it was eliminated that conflict could have resulting accident, eventually in a verdict thus realm of within the plaintiff. such a course would be While probabilities. fact possibility, it does not accord with jury to petitioner retirement of did not move confidence that she had no the conflict would indicate resolve that outcome. nothing gained from me it seems to would be So reversing
legal be tried equitable standpoint this case to or opportunity to obtain and thus afford the another over a fair trial the results have in her favor when in a verdict gone against her heretofore. judgments
I would affirm the of the trial court Court Appeals. of Civil 30,1960.
Opinion delivered November Rehearing 31,1960. overruled December Telephone Telegraph Company The Mountain States Company Et Al. well Construction Vo 7, 1960. No. A-7919. Decided December Rehearing December Overruled (341 148) S.W. 2d Series