Smith v. El Paso N.E. R. Co.

On Motion for Rehearing. , Appellant and appellees each file a motion for rehearing. We will first, consider appel-lees’ motion. Error is assigned to the opinion holding that appellees were entitled only to six peremptory challenges. Appellees neither discuss nor refer to any authority to sustain *366 their contention. The authorities referred to in the opinion, we think, sustain the view there expressed. The statute (Rev. St. 1925, art. 2148), in civil cases, expressly allows six peremptory challenges to “each party.” Party does not mean person. Several defendants having identical interests in the suit constitute but one party. Interests are identical where the grounds of defense are common to all. There is no suggestion of antagonism of interest in the pleading or issues tendered between defendants. Allowing more peremptory challenges than defendants were entitled to exercise constitutes error, and is reversible error where, as here, appellant exhausted his challenges and, by reason of the number of challenges allowed and exercised by appellees, was required to accept on the jury former employees of the defendant railroad company, objectionable to plaintiff appellant, and which he desired to challenge. For that reason alone the casé must necessarily be reversed. In addition to the cases referred to in the opinion, we will add Texas Jurisprudence, vol 26,.pp. 666 and 667, pars. 100 and 101 et seq., and cases there referred to in the notes. Other grounds for a rehearing assigned in appellees’ motion are: Error in holding that the evidence as shown by the record is sufficient to warrant the submission of the issu,e of discovered peril; in our holding that the trial court erred in sustaining appellees’ motion for judgment non obstante veredicto; in our holding that, under the facts disclosed by the evidence, it was brakeman Sears’ duty to use the facilities at hand, after discovering the approach of Mrs. Smith, to prevent a collision, and that he had no right to wait until he was absolutely certain that the deceased was going into a place of danger before taking proper steps to avoid injuring her. It is submitted that our holding is in conflict with the oft-referred to decisions of the Supreme Court cited in the motion. In the opinion we referred to and closely applied Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767, in which a writ of error was refused. That case has several times been referred to with approval in similar cases. Texas & N. O. R. Co. v. Goodwin (Tex. Civ. App.) 40 S.W.(2d) 182, 188; Texas & N. O. R. Co. v. Crow, 121 Tex. 346, 48 S.W.(2d) 1106; Houston Electric Co. v. Settle (Tex. Civ. App.) 51 S.W.(2d) 648. We think there is no conflict in our holding with the cases referred to in appellees’ motion. The case having been submitted to the jury on the material issue of discovered peril, and the jury, under the evidence heard, having found for the plaintiff on that issue, the court should have entered judgment for plaintiff, and, should the court then be of the opinion, as he evidently was, that the issue of discovered peril was not sustained by the evidence, he should have set the finding aside or rendered a judgment in accordance therewith. Fitch v. Lomax et al. (Tex. Com. App.) 16 S.W.(2d) 530, 66 A. L. R. 758. In that case the Commission of Appeals held that, where the answer of the jury was to a special material issue under the pleadings and the evidence, the court was not authorized to render a judgment contrary to such finding. See, also, Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881; Parker v. Solis (Tex. Civ. App.) 277 S. W. 714, 717; Compton v. Skeeters (Tex. Civ. App.) 250 S. W. 201. As said in Texas Jurisprudence, vol. 25, p. 498, par. 112, in stating the rule prior to the amendment of 1931, General Laws, 42d Leg. 1031, c. 77, p. 119 (Vernon’s Ann. Civ. St. art. 2211), under the relevant statutes (providing that the judgment must conform to the verdict) it was the settled practice that the trial courts were in no case authorized to substitute their findings for those of the jury and to render judgments contrary to the verdict. The exception to the statutes requiring that the judgment conform to the verdict as found in the amendment reads as follows: “Provided, that upon motion and reasonable, notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence.” In Waltz v. Uvalde Rock Asphalt Co. (Tex. Civ. App.) 58 S.W.(2d) 884, 8S6, where the trial court, on the facts of that case, disregarded the verdict of the jury and rendered judgment, it is said: “This procedure is authorized by [the amended statute as above quoted] where a directed verdict would have been proper.” Article 2209 provides that, where a special verdict is rendered, the court shall render judgment thereon, unless set aside or a new trial is granted. While the court in the exercise of discretion may set aside a verdict on special issues without having first rendered judgment thereon, we understand the court in Cortimeglia v. Davis, 116 Tex. 412, 292 S. W. 875, as holding that the court may not refuse to enter judgment on a verdict which constitutes a finding on all the facts tendered in the pleadings necessary to the rendition of judgment. If the verdict on a material issue is not supported by the evidence it may not be disregarded if it is responsive to the issue pleaded and submitted and in proper form. Carwile v. William M. Cameron & Co., 102 Tex. 171, 114 S. W. 100. Where the recent statute authorizes the rendition of judgment non obstante veredicto, we think the verdict, while undisturbed, must be the basis of the judgment. Such has been the rule whether the verdict was correct or not. Peeler v. Smith (Tex. Civ. App.) 18 S.W.(2d) 938, affirmed (Tex. Com. App.) 29 S.W.(2d) 975; North v. Atlas Brick Co. (Tex. Com. App.) 13 S.W.(2d) 59. There are some cases *367 referred to in Texas Jurisprudence, vol. 25, p. 499, under note 11, which apparently hold to the contrary. We have concluded that, under the undisputed evidence in the case, a “directed verdict” would not have been proper, nor could the court properly disregard the finding on the issue of discovered peril as having “no support in the evidence.” If we are not in error in so holding, it necessarily follows that it was error to enter judgment non ob-stante veredicto on the defendants’ (appel-lees’) motion. While appellees, in their brief, quote largely from the evidence, we do not find in the brief or in the motion or in the judgment where they point to a material fact on the issue of discovered peril on which no ■evidence was offered by appellants to sustain the issue. We said in the opinion that “Mrs. Smith was not run over and hilled until she fell out ■of the automobile at a distance of about 100 feet from the point of the impact.” The evidence does not show definitely just where she was killed, whether before or after she fell, or was thrown, out of the automobile. The evidence shows that she was taken from under the cowcatcher of the engine at a point 100 feet from the point of the collision. While the same witness also said she fell from the automobile about 100 feet from the place of the collision, we meant to state only what the jury, under the evidence, was authorized to find, and did not intend to make any finding. The distances and the speed of the engine and automobile in question were all estimates, and in some instances the estimates differed materially. Appellees’ motion is overruled. Appellant submits that this court, having found that the evidence was sufficient to have the issue of discovered peril submitted to the jury and sufficient to support the jury’s finding on that issue, should have reversed and rendered judgment for appellant. There is no suggestion by either party that the case has not been fully developed. We have again reviewed the evidence, and we think that it cannot be successfully maintained an instructed verdict could properly have been given, nor do we think that “there is no evidence to support the findings of the jury,” on said issue. Having concluded that under the record, as presented here, the trial court was in error in entering judgment non obstante veredicto for appellees on their motion, the difficult question is present as to the judgment that should now be rendered by this court. The opinions of the courts are not uniform as to the disposition that should be made of the eases under similar conditions. Article 1856 of the statute provides that: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.” To that statute the exception above referred to and constituting a part of article 2211 as amended by Acts 1931, c. 77 (Vernon’s Ann. Civ. St. art. 2211), has been added, and which exception we have concluded has no application under the evidence as we view it. In Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S. W. 913, 915, the Supreme Court held the statute quoted is in its terms mandatory, and, after stating the reason for the rule of practice, further said: “The obligation to do so [to render such judgment as the lowet court should have rendered] in a proper case has been clearly recognized and is not to be lightly disregarded. Any discretion which the courts may exercise in construing and applying the exception branch of the statute is a judicial, and not an arbitrary, one. In some cases the Courts of Civil Appeals have Ho option. Their proper discretion consists in their right to determine when the exception to the general statutory rule applies, and not in their right to apply the rule, or not, as they deem best, where the record is such as to clearly bring the case within the general terms of the statute.” The want of uniformity in the opinions seems to result from the application the courts make of the exceptions set out in the statute quoted, and which the Supreme Court, in the case from which we have quoted, says “have definitely qualified the peremptory character of its initial provision” of the statute. We think the trial court should have entered judgment for appellant on the verdict whatever disposition of the case he might have thought to thereafter make of the case. As it now is, the judgment has no basis in the verdict. To remand the case, should the evidence be. substantially as on this trial and the trial court be of the same opinion as expressed in the judgment on this trial, a mistrial would necessarily result. As said by the Commission of Appeals in Waldo v. Galveston, H. & S. A. R. Co., 50 S.W.(2d) 274, the case should be reversed or remanded according to which will better sub-serve the ends of justice. . We have concluded that appellant’s motion ought to be sustained, and it is so ordered. The case is reversed, and here rendered.in favor of appellants.