
    MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. PRICE, District Judge, et al.
    (Nos. 718-4636.)
    (Commission of Appeals of Texas, Section B.
    Dec. 1, 1926.)
    New trial <&wkey;>l 10 — Answers to special issues returned by jury being insufficient to support verdict for .either party, court could on own motion refuse judgment and order new trial.
    In action against railway for death of engineer in which trial court of its own motion set aside jury’s answers to special issues and ordered new trial, mandamus will not lie to order entry of judgment in favor of either party, since certain issues were left to court’s decision, and jury’s verdict on special issues submitted did not alone indicate proper general verdict.
    Original proceeding for mandamus, by the Missouri-Kansas-Texas Railroad Company of Texas against Hon. J. B. Price, District Judge, and another, opposed by Stella Thom-ason, who petitions for mandamus in her own .Behalf.
    Each petition denied.
    See, also, 280 S. W. 325.
    Chas. C. Huff, of Dallas, Page & Powell, of Bastrop, and J. M. Chambers, of Dallas, for relator.
    Staples & Harris, of Smithville, Maynard & Maynard, of Bastrop, and Harris & Harris,, of Austin, for respondents.
   POWELL, P. J.

At the July term, 1925, there went to trial in the district court of Bastrop county, Tex., the" personal injury suit of Mrs. Stella Thomason v. Missouri-Kansas-Texas Railroad Company of Texas. Her husband, an engineer for the defendant company, had been killed in a head-on collision near Hillendahl, Tex., between passenger trains Nos. 23 and 26. The only material defense offered by the railroad company was to the effect that engineer Thomason had violated his train order requiring him to wait until 9 p. m. at Hillendahl before proceeding north. It was claimed that he violated this order and could not recover.

The case was tried upon special issues. The four issues submitted to the jury, and the answers thereto, read as follows:

“Special issue No. 1: Did the collision between the north-bound train No. 26, and the south-bound train No. 23, occur after 9 o’clock p. m. according to the time then in use by the defendant in the operation of its trains? You will answer ‘yes’ or ‘no.’ Answer: Yes.
“Special issue No. 2: Did the north-bound train No. 26, pass the north switch at Hillen-dahl before 9 o’clock p. m. according to the time then in use by the defendant in the operation of its trains? You will answer ‘yes’ or ‘no.’ Answer: Yes.
“Special issue No. 3: .What amount of money, if paid now, would reasonably compensate Mrs. Stella Thomason for the death of her husband, L. P. Thomason? You will answer, stating the amount in dollars and cents, if any. Answer: $15,000.”

At the request of defendant, another special issue was submitted as follows:

“Gentlemen of the jury, the undisputed evidence in this case shows that the deceased, L. P. Thomason, failed to read order No. 61, controlling the movement of his train, to his conductor, J. A. Carney, as he was required to do under rule No. 210 (a) of the defendant, promulgated for the guidance of its employees, and the court submits for your decision the following question: Was the failure of the said D. P. Thomason to read said order to said conductor, J. A. Carney, a direct and proximate cause of the accident resulting in the loss of the life of the said L. P. Thomason? You will answer this question ‘yes’ or ‘no.’ Answer: No.”

There was no objection to these issues by Mrs. Thomason. She requested no other issues, except one as to discovered peril, which was refused. The railway company made no objection to the issues as submitted, except the one on measure of damages. That is immaterial to our inquiry here. The railway company did object to some general instructions which accompanied the issues. But the fact is that the first two issues are, in effect, those requested by the cómpany.

When the answers to aforesaid special issues were returned, the plaintiff and defendant each entered a motion for judgment. Both motions were overruled by the court. The court, of its own motion, set the answers to the special issues aside and ordered a new trial. The relevant portion of his judgment reads as follows:

“The said answers of the jury to said issues submitted to it were returned into open court by the jury on July 20, 1925, and received by the court and the jury discharged. Subsequently, and on July 22, 1925, both plaintiff and defendant filed motions requesting the court to render judgment, the plaintiff asking that judgment be rendered in her favor for the sum of $15,000, and the defendant asking that judgment be rendered in its favor, that plaintiff take nothing by her action, and both said motions were, on said day, presented to the court by the respective parties, and the court, after hearing argument upon said motions and being fully advised in the premises, finds that both should be overruled and denied and that the findings of the jury should be set aside and a new trial granted.
“It is therefore considered, ordered, and adjudged that the said findings, answers, and verdict of the jury be and the same are hereby set aside and held for naught and a new trial granted, and that said cause stand for trial in due course. To which action of the court, both plaintiff and defendant excepted then and there and in open court gave notice of appeal to the Court of Civil Appeals of the Third Supreme Judicial District of Texas, and upon request of both parties, 80 days after the adjournment of this term, be and the same is hereby allowed, within which to prepare and have approved and ■filed a statement of facts and bills of exceptions.” *

In due course the railway company attempted to appeal from said judgment of the court, under the Act of the Thirty-Ninth Legislature (1925) c. 18, allowing appeals from orders granting motions lor new trials. But the Court of Civil Appeals at Austin dismissed tlie company’s appeal. See 2S0 S. W. 325. The company then applied for writ of error, which was refused by our Supreme Court.

The plaintiff, Mrs. Thomason, abandoned her appeal, notice of which she had given at the time the judgment was entered.

After being denied its alleged right of appeal, and having no other remedy, the company, with due diligence, applied to the Supreme Court for permission to file petition for mandamus, requiring the district judge to enter judgment for the company upon the answers returned by the jury. The motion was overruled. . But, on motion for rehearing, it was granted. The cause is now before us on petition for mandamus, seeking the relief just mentioned.

Judge Price has merely entered his appearance. He has filed no anstver. The respondent, Mrs. Thomason, has answered. In her answer she pleads over for a mandamus, requiring Judge- Price to enter judgment in her favor for $15,000.’

The pertinent and material inquiry in this case is whether or not the action of the trial court, on its own motion, in setting aside the jury’s findings, shall be sustained. If so, then the prayer of each party for mandamus must be denied.

It will be observed, in the instant case, that the trial court, in entering his judgment, did not state his reason or reasons. There was no request that he state them. Furthermore, there is nothing in the pleadings or record before us which shows that any reason was his sole and only reason for ordering a new trial. In the petition for mandamus, filed by the railway company, it is stated:

“Nor did respondent assign any reason for the making of such order, other than a verbal announcement from the bench that the findings and answers of the jury were conflicting, and therefore not a proper basis for the rendition of judgment for either party.”

It is unnecessary, for us to determine whether or not the findings of the jury were conflicting. Assuming, for the purposes of this opinion only, that they are not conflicting, as alleged by relator in its petition, it is still clear to us that we should not mandamus the trial court and compel him to enter a judgment in this case for either of the parties. This was a jury trial. The parties left the finding of many material issues to the court. The court, in the light of the record before him, and having observed the witnesses as they testified, was apparently unwilling to make certain findings, in addition to the jury verdict, which were essential to the entry of a judgment in the ease. We have no authority to compel him to make particular findings. The jury did not find that Thomason was negligent in leaving the switch before 9 o’clock, nor that such action, even if it constituted negligence, was the proximate cause of the collision. Such findings were necessary before the railway company was entitled to a judgment. The trial-court may have thought that the collision would have occurred even if Engineer Thom-ason had not passed the switch before 9 o’clock in violation of his order. On the other hand, the jury did not find that it was negligence on the part of the south-bound train to be north of the switch after 9 o’clock, in violation of its order, nor that such negligence, if negligence it be, was the proximate cause of the. collision. Such findings were essential to a judgment for the plaintiff.

The railway company refers us to the recent case of Railway Oo. v. Canty, 115 Tex. 537, 285 S. W. 296, where this court did recommend the issuance of a mandamus against the trial court. But the instant case is not similar to the Canty Case. In the latter case the trial court stated, in his judgment entry, that his sole and only reason for' failing and refusing to enter judgment for the railway company was that the jury findings were conflicting. In that case the jury acquitted the company of negligence. That being true, that one finding demanded a judgment for the defendant, unless such finding was in conflict with some other jury finding. It clearly was not so in conflict. Consequently, in that case, the one jury finding, alone and by itself, authorized and required the entry of a judgment in favor of the railway company as a matter of law. We have shown that no such situation was presented by the jury findings in the case at bar.

In view of what we have said, we recommend that each petition for mandamus be denied.

CURETON, C. J. The opinion of the.Commission of Appeals is adopted, and -mandamus refused. 
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