This appeal is from a judgment refusing the motion of appellant for a recovery — and instead granting one to the appellees — upon the verdict of a jury on special issues in a trial, wherein the appellant sought of the appellee Leverkuhn and his insurance carrier damages for personal injuries received by him in a collision between his automobile and Leverkuhn's truck and trailer, alleged by him to have been caused by the negligence of the latter; the findings in material substance being as follows:
It was determined, first, under special issues 1 to 6, inclusive, that Leverkuhn negligently operated his truck and trailer at the time and on the occasion in question in the following particulars, each of which was a proximate cause of the collision: (1) Without having any headlights or other lights thereon to give notice and warning to others using the highway and traveling in the opposite direction; (2) with the truck and trailer, or a portion thereof, extending beyond and to his left of the center of the highway.
Second, under special issue 7, that the collision was not the result of an unavoidable accident.
Third, under special issues 8 and 9, inclusive, that there were at the time and place of the collision Atkins-Line trucks parked on the right-hand side of the road going toward Goose Creek, but there was left a width of at least 15 feet of clear and unobstructed space on the main highway opposite them, and they were not so parked as that a clear view of them could not be obtained from a distance of 200 feet in either direction on the highway.
Fourth, issues 13 and 14, together with the answers thereto, in his verbis, were:
"Special Issue No. 13: Do you find from a preponderance of the evidence that J. H. Marx, the driver of the Pontiac automobile involved in the collision in question, upon approaching the point where the accident occurred, in undertaking to pass defendant Leverkuhn's truck, failed to slow down the *Page 951 speed of said Pontiac automobile to fifteen miles per hour?
"We do.
"Special Issue No. 14: If you have answered special issue No. 13 `we do,' and only in that event, then answer:
"Do you find from a preponderance of the evidence that such failure of J. H. Marx was a proximate cause as that term has been defined for you herein, of the injuries and damage, if any, complained about by him?
"We do."
Fifth, under special issues 15 to 27, inclusive, appellant Marx was expressly acquitted of negligence in each of the following particulars: (1) In not failing to keep a lookout ahead of his automobile for other motor vehicles on the public highway upon which he was traveling; (2) in not failing at the time and on the occasion in question to have his motor vehicle under control; (3) in not having driven his motor vehicle at the time and on the occasion in question at an excessive rate of speed; (4) in not having operated and driven his automobile at the time and on the occasion in question at a rate of speed reasonably calculated to endanger the safety of any property located at the point where the collision occurred; (5) in not having failed to operate find drive his automobile at the time and on the occasion in question upon his right-hand side of the middle of the public highway upon which he was traveling.
And, sixth, under special issue 28, that $7,000 would be a fair and adequate compensation for the injuries alleged and proven to have been received by the appellant Marx on the occasion in question, taking into consideration the elements of damage specified in the court's charge.
There were no other fact issues either requested or submitted, nor was the judgment rested upon any; its recitations showing the contrary. Further, neither side has attacked any of the quoted answers as lacking support in the evidence.
The court's action, therefore, in so entering judgment in favor of the appellee Leverkuhn solely on this verdict — thus complete within its four corners, notwithstanding the fact that, on the one hand, it fastens negligence in the specified particulars upon Leverkuhn, and on the other frees Marx of any at all, unless the mere failure to reduce to 15 miles in undertaking to pass, vel non, constitutes such — is based exclusively on the view that these answers to issues 13 and 14, as a matter of law, established contributory negligence on his part and barred any recovery by Marx.
That conclusion cannot be sustained, for the outstanding reason, among others, that, while it proceeds solely from an application of erstwhile Pen. Code, art. 794, to the facts otherwise assumed to have attended this collision, it ignores entirely the question of whether or not Marx, in time to have slowed down to 15 miles per hour before the actual impact, knew, or reasonably should have known that Leverkuhn's truck was there at all at the time. By the mutual concession of both parties the evidence was conflicting upon this feature; Marx on his side in the only direct testimony affecting it saying he did not see the truck until just as he hit it, too late to avoid doing so, while on the adverse side some inconclusive circumstances tending to indicate that he had, or in the exercise of due care should have, seen it in time were adduced.
By the pleadings also such advance knowledge, actual or imputed, was in legal effect, at least, denied for his part by Marx in general averments from which that was a legitimate inference, and affirmed in turn by Leverkuhn in traversing merely with a general demurrer.
None of the quoted findings of the jury, either directly or by necessary inference, determine whether or not Marx so saw or should have seen the truck, or knew or should have known of its presence; nor can any finding that he did see or know of it, or should have, be deemed to have been made by the trial court in such manner as to support the judgment under R.S. article 2190, as amended by Acts 1931, c. 78, § 1 (Vernon's Ann.Civ.St. art. 2190), because, aside from the express recitation in the decree that it was founded alone upon the verdict on the inquiries that were submitted (Barnett v. Williams [Tex. Civ. App.] 242 S.W. 348), that matter constituted an independent and complete ground of defense, pleaded and relied upon as such by the appellee, hence was susceptible of a waiver by him. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084.
With such an actual hiatus thus showing up in the verdict, it is thought to have furnished no proper basis for a judgment in favor of either party, since — without its further appearing (actually or presumptively) that appellant in advance neither knew nor was charged with knowledge of the truck's presence in time to have slowed down to 15 miles — he on the one hand was not entitled to mature the recovery the findings *Page 952 otherwise accorded him, nor on the other could the appellee deprive him entirely of those gains. In other words, his mere ultimate attempt to pass — in the circumstances otherwise found and undisputedly appearing, that is, it being at night, with him on the right side of the road and his lights burning, while the truck was on the wrong side without lights — at a greater speed than 15 miles, in the absence of such added element as to his knowledge or the lack of it, could neither constitute contributory negligence as a matter of law (Pennington Co. v. Wona [Tex. Civ. App.] 49 S.W.2d 482, writ refused) nor be a proximate cause of the collision under the definition of the latter term in the court's charge. This was, further, as just indicated, defensive matter to appellant's suit, going as it did solely to whether or not he was guilty of contributory negligence, the whole injection of Pen. Code, art. 794, being indeed of that character — hence appellant did not for his part waive it by not himself requesting the submission thereof to the jury, that being incumbent upon his opponent in making out the defense he so plead and relied on. Ormsby v. Ratcliffe, supra; Federal Surety Co. v. Smith (Tex.Com.App.) 41 S.W.2d 210; McCoy v. Long (Tex.Com.App.) 15 S.W.2d 234.
That appellant must have had such actual or imputed knowledge of the truck's presence in time to have so slowed down to constitute his act a violation of this penal statute seems to have — by clear analogy at least — been the effect of the holding of our highest criminal court in Stalling v. State, 90 Tex. Crim. 310, 234 S.W. 914; that is, the act itself presupposes the existence of such advance knowledge as an inhering and constituent element of the offense thereby denounced, without the presence of which there is no infraction of the law. See also People v. Fodera, 33 Cal. App. 8, 164 P. 22.
While that statute is no longer a part of the criminal jurisprudence of the state, having been repealed outright subsequent both to the happening of this collision and the rendition of judgment herein, under this emergency clause: "Sec. 2. In view of the fact that the Supreme Court of the State of Texas, has held on several occasions that the speed of forty-five (45) miles an hour is a legal rate in Texas, thereby making this statute inoperative and useless and the further fact that this statute is never recognized and failure to observe one law creates disrespect for all laws, creates an emergency and an imperative public necessity, that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and the same is hereby suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted" (Gen. Laws, 43d Leg., 1933, Reg. Sess., c. 56, p. 112), still, it is apprehended, it should be applied to this occurrence because in force at that time.
So that, the submission of all special issues made by the pleadings and proof — as was the one of whether appellant so knew the car he undertook to pass was there — being affirmatively enjoined on the court by cited article 2190, notwithstanding there was no specific request therefor from either side (Speer's Law of Special Issues in Texas, chapter 7, paragraph 149, and cited cases), and that not having been done, since in the circumstances shown the court itself was without authority to fill the "aching void" thus left, a mistrial should have been entered.
For a further reason also a reversal must be ordered: The evidence on motion for new trial showed: (1) That individual statements of his own were made by the juror Wingate in the presence and hearing of other members while the jury was deliberating upon its verdict, contrary to the evidence adduced on the trial, to the effect that he was more familiar with the road than the other jurors and some of the witnesses who testified; that he had traveled the road frequently since that time and had worked in highway work; and that the road was straighter than the witnesses testified that it was. (2) That it is at least reasonably doubtful as to whether one or more jurors — particularly Messrs. Hill and Tanner, the former admitting reliance on these statements, the latter being uncertain about it — were wrongfully influenced by this improper conduct in rendering their verdict in answer to special issue No. 14, supra; wherefore the judgment should be set aside. Lincoln v. Stone (Tex.Com.App.) 59 S.W.2d 100, opinion expressly approved by the Supreme Court; Casstevens v. T. P. Ry. Co., 119 Tex. 456,32 S.W.2d 637, 73 A.L.R. 89; Houston T. C. Ry. Co. v. Gray,105 Tex. 42, 143 S.W. 606; Moore v. Ivey (Tex.Com.App.) 277 S.W. 106; St. Louis S. Ry. Co. v. Lewis (Tex.Com.App.) 5 S.W.2d 765; St. Louis, S. F. T. Ry. Co. v. Rutland (Tex.Com.App.) 292 S.W. 182, 183; Elizondo v. Reagan (Tex.Com.App.) 55 S.W.2d 540, opinion expressly approved by the Supreme Court. *Page 953