Gray v. LM Chevrolet Company

ON MOTION FOR REHEARING

Appellant urges on Motion for Rehearing that this court set aside its judgment affirming the judgment of the trial court, and presents five grounds therefor. The first relates to a ruling of the trial court permitting appellees’ counsel to quote statistics from the Journal of the American Medical Association. The second ground cites error of the trial court in refusing to permit a lady juror to feel the neck of the injured party. We feel that we have adequately treated these points in our opinion.

The third ground complains of the action of the trial court in overruling appellant’s motion for mistrial based on arguments of defense counsel. The Motion for Rehearing cites no authorities, but in appellant’s original brief the cases of Allmon v. Texas Electric Service Co., Tex.Civ.App., 242 S.W.2d 806, and Cross v. Houston Belt & Terminal Railway Company, Tex.Civ.App., 351 S.W.2d 84, are cited. We have again reviewed these authorities and in each of them we find obvious and incurable error in the argument of counsel.

In the instant case, the arguments of defense counsel were set out in full in plaintiff’s Bill of Exception No. One, filed as a 30-page supplemental transcript in this case, and substantially repeated in appellant’s brief. As stated in our original opinion herein, no useful purpose would be served in attempting to set out in full those portions of these arguments deemed by appellant to be objectionable. Suffice it to say that no-where do we find clearly objectionable features such as those found in the Alimón and Cross cases. In at least two instances here, objections of plaintiff’s counsel were sustained by the court and the jury instructed not to consider the remarks. Even had this action not been taken by the court, we fail to find reversible error in the remarks.

In the fourth and fifth grounds set out in the Motion for Rehearing, appellant cites error in the action of this court in sustaining the trial court’s refusal to withdraw from the jury the issues of “emergency” and “unavoidable accident”, and the claim that this court was in error in not holding that the jury’s affirmative answers to these issues were so conflicting as to render the verdict so “incomplete and meaningless as to require the granting of a new trial.” We stated in our original opinion that both “emergency” and “unavoidable accident” were plead by appellees, and that there was sufficient evidence in the record to warrant the submission of each of them as defensive issues in the case. As to the absence of irreconcilable conflict in the affirmative findings on both issues, we applied the Supreme Court test as laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985:

“The court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict.”

Here, the jury found (1) unavoidable accident, and (2) that the defendant, Perez, acted prudently in an emergency. Neither finding would support a judgment for the plaintiff. We recognize that the Little Rock rule was expressly modified under the particular circumstances in Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960), wherein its application would have resulted in an inability to enter judgment for either party, in which event the verdict would not *867be permitted to stand. However, in Ross v. Whiteside, 356 S.W.2d 497 (Tex.Civ.App., 1962 — no writ hist.) the court stated:

“The test or rule announced in the Little Rock case was qualified by our Supreme Court in Bradford v. Arhelger, [161] Tex. [427], 340 S.W.2d 772, but the qualification was not such as to affect the application of the rule stated to the instant case.”

We find the same to be true here, and an application of the Little Rock test or rule eliminates any irreconcilable conflict in the jury’s findings on the two issues of “emergency” and “unavoidable accident” and supports a judgment for appellees.

The Motion for Rehearing is accordingly overruled.