dissenting.
In this subrogation case, the landlord (Ronald J. Finger) and the tenant (Monterey House) were both named insureds under a fire policy issued by Travelers Insurance Company. After the insured premises burned, the same lawyer represented both Finger and Monterey House. He filed one petition for both accusing Southern Refrigeration Services of the identical acts of negligence that caused the fire. Therefore, at least in regard to liability, Finger and Monte-rey House were identically situated as plaintiffs. That explains why they used the same lawyer and the same petition.
I agree with the panel that the judge erred by granting a directed verdict against Finger, but I am convinced the error was harmless. Rule 81 provides that no civil judgment shall be reversed unless the error probably caused an improper judgment. Tex.R.App.P. 81(b)(1). This rule of law is not cited in the panel opinion or in Mr. Finger’s two briefs on appeal.
The controlling fact in this case is that the jury found that the plaintiff, Monterey *897House, was negligent and that the defendant, Southern Refrigeration, was not negligent. Because Finger’s liability case was identical to Monterey House’s, Finger was not harmed. If the directed verdict had never been granted, Finger still would have lost for the same reason Monterey House lost— Southern Refrigeration was not negligent. Nothing suggests that the jury would have reached any other verdict if Finger had remained in the lawsuit. Nobody contends that the jury issue on liability would have been different.1 Even if it had been, a verdict that Southern Refrigeration was not negligent as to the tenant but was negligent as to the landlord would have to be set aside on appeal as being nonsensical under these facts and in irreconcilable conflict with itself.
Finger contends that the jury’s verdict doesn’t matter. He states:
[Southern Refrigeration] curiously argues that the issue of damages is academic because the jury did not find liability against Southern Refrigeration Services, Inc. as far as Monterey House was concerned. The failure of the jury to find any liability against Southern Refrigeration on Monte-rey House’s claims is clearly irrelevant and a “red herring” to the issue on appeal. Finger already had a directed verdict wrongly entered against him before his issue of negligence could be submitted to the jury. Also, the improper granting of the directed verdict may have tainted the outcome of the entire case.
The only relevant issue that should be considered by this Honorable Court is whether appellant presented probative evidence sufficient to raise a fact issue on damages since that was the grounds for the entry of the directed verdict.
Finger’s reply brief (all emphasis in original). There are two flaws in this argument. First, Finger does not state how “his issue of negligence” would have been any different. Plainly, it would not have been. Second, Finger does not say how the directed verdict tainted the case. Plainly, it did not. Because Finger’s liability case was identical to Monterey’s, he was not harmed. Finger’s lawyer made the same presentation to the same jury based on the same allegations in Finger’s petition. Thus, Finger’s case was fully heard, and the jury found it to have no merit.
The panel’s original opinion did not state any way that Finger was harmed. The opinion on rehearing states that the defense argued to the jury that Finger’s damages were not involved in the lawsuit; that the only jury question on damages was from Monte-rey House and Monterey House’s damages were limited to $10,000.00; and that the jury should not consider the insurance payment because Travelers was not a party. None of this, however, affects the issue of liability, the sole issue on which the jury decided this case. Therefore, these acts did not cause the rendition of an improper judgment.
The issue here, is not whether this verdict prevents Finger from pursuing Southern in another trial. The controlling but neglected question in this case is whether the directed verdict harmed Finger in this trial.
I would hold that the error was harmless and affirm the judgment. I respectfully but vigorously dissent.
DUGGAN, J., joins this opinion.
. The controlling issue asked, "Did the negligence, if any, of those named below proximately cause the fire in question?” The jury was to answer yes or no for Southern Refrigeration and Monterey House.