Strauss v. La Mark

On Motion for Rehearing

Appellees contend that the judgment must be affirmed despite our conclusion that the answer made by the jury to Special Issue No. 1 was so against the great weight and preponderance of the evidence as to be clearly wrong. Special Issues 2 through 6 inquiring as to the pri*586mary negligetice of. appellees were conditioned upon an affirmative answer to Special Issue No. 1. The jury answered this issue in the negative and, under the instructions of the court, made no answers to Issues 2 through 6. Appellant did not object to this conditional submission.

By permitting a conditional submission of Special Issues 2 through 6 without objection, appellant waived her right to have a jury trial on the unanswered issues and the benefit, if-any, she might have received from favorable answers to such issues. Rules 272 and 279, Texas Rules of Civil Procedure; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Whiteside v. Tackett, Tex.Civ.App., 229 S.W.2d 908, error dism.; Duval County Ranch Company v. Foster, Tex.Civ.App., 318 S.W.2d 25, ref., n. r. e.

Under the facts of this, case an objection to the conditional submission could properly have been denied by the trial court. Although we have held that the jury’s answer to Special Issue No. 1 should be set aside, there was evidence which required that the issue be- submitted to the jury. Appellant’s' position is that she should not he required to make what in essence would have been merely a formal objection in order to preserve her right to complain of the subsequent action of the jury. It appears, however, that the law is now settled to the contrary.

In Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, the Supreme Court held that by failing to ob-. ject to the conditional submission of an is-, sue, a party waived his right to a jury trial on the unanswered issue. There the trial court submitted “proper lookout” in such a way that a finding of failure to keep a proper lookout was necessarily negligence. Predicated on an affirmative finding on this issue the Court submitted an issue inquiring whether the failure to keep a proper lookout was negligence. The following issue concerning proximate cause was conditioned on an affirmative answer to the negligence issue. The jury found failure to keep a proper lookout, but returned a conflicting answer of no negligence, and. did not answer the proximate cause issue. The plaintiff had a valid objection to the action of the court in conditioning the proximate cause issue on the unnecessary negligence issue.

The Supreme Court held that Rule 279, Texas Rules of Civil Procedure1, required that the unanswered issue on proximate cause be taken as having been answered by the court in such manner as to support the judgment.

This necessarily is a holding that a conditional submission of an issue, where such issue is not answered by reason of such conditional submission, is equivalent to a failure to submit, and, that under the rule, if an unconditional submission is not requested, and no objection to such conditional submission is made, such omitted issue must be deemed found by the court in such manner as to support the judgment.

In Whiteside v. Tackett, supra, the court said:

“Establishment of title by ten years adverse possession was appellants’ sole ground of recovery. The conditional .submission *587of this issue to the jury was equivalent to no submission at all when the event upon which its submission hinged did not occur. We, therefore, conclude, limitation title not having been established as a matter of law, that appellants waived their only ground of recovery.

“This holding may seem severe in view of our decision that the answer of the jury to the first special issue was unwarranted, but a contrary ruling would be opposed to the law declared by the Supreme Court, as we understand it, would conflict with Rules 272 and 279, T.R.C.P., and would result in the trial of cases piecemeal.”

These cases, and others cited therein, are determinative of the question before us. The motion for rehearing is granted and the judgment of the trial court is affirmed.

. “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists . of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without' such request, or objection, and there is evidence to support a finding thereon, the trial court, * ⅜ ⅛ may * ⅞ ⅜ make and file written findings * ⅝ *, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.”