487 F. Supp. 647 | E.D. Tex. | 1980
MEMORANDUM OPINION ON REMAND FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
I
As required by the mandate of the United States Court of Appeals for the Fifth Circuit, this Court enters judgment for the Defendant, Chemical Leaman Tank Lines, Inc., upon the verdict of the jury in the second trial of this action.
II
With all respect for the Court of Appeals, I nevertheless feel compelled to point out
The form of verdict used in the second trial of this action requested the jury to determine whether either the Defendant, Chemical Leaman Tank Lines, Inc. (“Chemical Leaman”), or the deceased, Robert Eugene Conway, was guilty of negligence and, if so, to state what specific act or acts constituted the negligence. The jury answered the questions in the verdict form
Although the Court of Appeals was able to dispose of my concerns by summarily concluding that “[c]learly . . . the jury’s answers to the interrogatories are a verdict and do support a judgment for the defendant,” Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d at 362 (emphasis in original), I remain unpersuaded. As a district court judge, each day I face litigants who have suffered losses and come to the courthouse seeking a remedy. Too, I see those who feel that they have been unjustly charged with harming another. This daily contact with litigants during the presentation of their cases has convinced me of the value of ensuring that each party has his case fully and fairly decided by the judge and jury so that justice may be done. When a reasonable likelihood exists that the jury has evaluated a litigant’s case improperly by answering general and special interrogatories inconsistently, this doubt should be resolved by granting that litigant a new trial. Fairness requires no less.
In sum, I find myself in a position similar to that occupied by Judge Gee, coincidently a member of the panel on both appeals in this action,
Subordinate magistrates such as I must either obey the orders of a higher authority or yield up their posts to those who will. I obey, since in my view the action required by the Court’s mandate is only to follow a mistaken course and not an evil one.
. The verdict form with the answers of the jury is reproduced in the opinion of the Court of Appeals. See Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 361-62 (5th Cir. 1980).
. The accident out of which this action arose .occurred before Texas abolished the contributory negligence bar.- Thus, the negligence of the deceased barred the Plaintiffs’ recovery under the Texas Wrongful Death Act. Lofton v. Norman, 508 S.W.2d 915, 922 (Tex.Civ.App.— Corpus Christi 1974, writ ref’d n. r. e.) (contributory negligence of decedent precludes recovery by surviving wife and child under the Texas Wrongful Death Act).
. Judge Gee was a member of both the Fifth Circuit panel that heard the appeal after the first trial of this action, see Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927 (5th Cir. 1976), reh’g, 540 F.2d 837 (5th Cir. 1976), as well as the panel that heard the appeal after the second and third trials of this action, see Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360 (5th Cir. 1980).