(concurring) :
I concur fully in the Court’s decision and Judge Moore’s opinion for us. As this case points up a procedural problem of great importance and in which I have taken a special interest, I offer this concurrence in which my Brothers also join. I add this only to point out once again the remarkable utility of the general charge with special interrogatories under F.R.Civ.P. 49(a). See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338.
What sets this case apart is that the trial judge — probably from an unfamiliarity with this device born out of a local traditional submission on a general *454charge, general verdict structure — went both too far and not far enough. The result is that the case must now be remanded for a wholly unnecessary retrial and probably a second and likewise unnecessary appeal. Added to this deficiency, which springs from the way the special interrogatories were structured9 when used with a general verdict,10 it was (albeit unknowingly) transformed from a 49(a) to a 49(b) verdict with all the shortcomings of that ancient and now discredited method.11
The resourceful trial judge was certainly on the right track in using interrogatories. But where he did not go far enough was in structuring the question on contributory negligence (Int. No. 5) to a “no” answer to wanton or willful (Int. No. 4). For since we have now held that there is sufficient evidence to sustain the finding of simple negligence (Int. No. 2) with proximate cause (Int. No. 3) we would be able to put this case to rest once and for all had the jury been allowed to answer contributory negligence (Int. No. 5) independent of the answer to wanton/willful (Int. No. 4).
Had there been no conditional submission to Int. No. 5 a “yes” answer, in view of our legal holding on insufficiency of wanton/willful, would now result in a complete reversal and rendition. On the other hand, a “no” answer would permit us to affirm the judgment on the basis of simple negligence.
Conditional submission is sometimes appropriate and occasionally required.12 But where there is a possibility both factually and on legal theories of synthesizing a valid verdict for or against a particular party conditional submission should be carefully avoided.
That was the case here. For it was foreseeable that (i) upholding a wanton/ willful verdict would be a formidable (and now unsuccessful) task, (ii) the jury, independent of what it did on wanton/willful or what might happen to the finding on J.N.O.V. or appeal, could (and did) find simple negligence, and (iii) at the same time find no contributory negligence. The legal theories on wanton/willful and simple negligence/ contributory negligence were distinctly separate. What the Judge needed was answers on the critical facts of each theory. He could then enter a judgment corresponding to those fact-findings and we, on appeal, could affirm, modify or reverse the judgment according to whatever disposition the law would require if one or more of the distinctive findings were set aside as a matter of law. ■
In this day and time of explosive docket increases it is unfortunate that one of the busiest trial courts in the Fifth Circuit must now re-try the whole case on simple negligence and damages with a prospect of a second appeal to this court whose docket has exponentially increased over 400% since I960.13
But as with life generally this squandering of precious judicial resources *455may turn out to be a blessing. This and other recent cases14 point up sharply the oft-times simple structural changes which would make the 49(a) special interrogatory verdict complete for whatever adjustments the law demands.
Finally, the use of special interrogatories and a general verdict is not only fraught with hazards while all the while depriving the court of the flexibility of 49(a), its use is wholly unnecessary. For if, as is likely, the Judge cast it in this form as a means of having the jury fix the amount, if any, of damages, that could more readily be done by adding as Int. No. 7 a simple inquiry to state the answers in dollars.
The 49(a) verdict is indeed the doubt eliminator. Marvelous as it is with an elasticity which allows the Court to deal with nearly every contingency it is both a blessing and a burden. For the travail of anticipating all of the likely contingencies and then constructing the verdict in a way which will permit the jury intelligently and purposefully to supply the answers rests squarely on the trial court.15 See, Rorem v. Halliburton Oil Well Cementing Co., 5 Cir., 1957, 246 F.2d 427, 432; R. B. Company v. Aetna Insurance Company, 5 Cir., 1962, 299 F. 2d 753, 759 and Barrios v. Louisiana Construction Materials Company, 5 Cir., 1972, 465 F.2d 1157 [1972].
That is the lesson of this case. That is why progress comes even from unintended unseen mistakes.
. See note 1, supra, to the Court’s opinion.
. In addition to the answers to the interrogatories the jury was supplied and filled out this form of general verdict:
“WE, the Jury, find in favor of the plaintiff, Jonathan Boyce, and against the defendant Pi Kappa Alpha Holding Corporation, and assess damages in the sum of $850,000.
SO SAY WE ALL. . . .
/s/ W. Burdette Hunton
Foreman”
In the formal judgment the trial court quoted this general verdict and without any reference to the interrogatories entered final judgment for Boyce for $850,000.
. See my recent concurrence in Wolfe v. Virusky, 5 Cir., 1972, 470 F.2d 831 in which I point out the dangers of a witting or unwitting lapse into 49(b).
. For example, negligence (Int. No. 2) and proximate cause (Int. No. 3) compels it lest the jury either be confused by answering proximate cause with no negligence or risk returning an inconsistent verdict.
. Though the figures are now out of date see, Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I; NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5 Cir., 1970).
. See, In re Double D Dredging Co., Inc., 5 Cir., 1972, 467 F.2d 468 [1972]; see also Burns v. Anchor-Wate Co., 5 Cir., 1972, 469 F.2d 730 [1972].
. I have previously discussed the trial Judge’s burden at some length.
“Pitfalls there are, to be sure. But these abound in the law, indeed in any process of thoughtful deliberation looking toward resolution. And nearly all can be avoided by the sort of forethought which ought to characterize the solemn, awesome jury submission which is the climax, or near climax of the whole trial. More than that, to attain the great utility of the 49(a) Special Verdict the Judge is forced to think, and think hard. That is a virtue in itself.
‘The fact is that one of the sometimes unexpected, but wholesome results of special interrogatories jury submission is to emphasize the absolute necessity that there be first a clear understanding of the precise legal issues for jury resolution and then a translation of them into articulate questions which may be authoritatively answered by a simple categorical. In a general way this is to say that not only is it the jury’s imprecision which is hidden by the traditional general charge and verdict. Many juridical errors of omission and commission by court and counsel are likewise perpetually concealed.’
R. B. Co. v. Aetna Ins. Co., 5 Cir., 1962, 299 F.2d 753, 756-757.
The thinking has to begin with the construction of the charge itself and particularly the climatic questions to be propounded and the types of alternative answers to be employed. This involves a bit of dreaming by the Judge with counsel by anticipating all of the likely, probable answers and then testing these several likely results against the possible existence of conflict or the type or types of judgments which could be rendered under them. With the celebrated vagaries of jury reaction, the Judge and counsel have hardly done their ‘homework’ unless they have constructed a submission which will reasonably meet these contingencies.” Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338 at 351.