(dissenting).
I respectfully dissent.
In reconciling the apparent conflict in the answer to question No. 1 with answers to Questions 12 and 13 the Court of Civil Appeals said:
“It seems readily conceivable that while the jury, by its answer to Special Issue No. 1, found that there was an assault and battery, in its generally accepted meaning, committed by Gilli-land upon Chew, it was not an actionable assault and battery because of the defensive elements found by the jury to have been existent by their answers to Special Issues 12 and 13.”
The effect of this holding is to say that even though the jury finds in answer to-the issue No. 1 that the acts of violence committed by Gilliland upon the person of Chew amounted to an assault and battery, an express and specific finding by the jury that Gilliland while committing those acts was acting in defense of property without the use of more force than was necessary does not present an irreconcilable conflict which would prevent a judgment being entered for Gilliland on the verdict. This holding of the Court of Civil Appeals is supported by the case of Howard v. Howard, 102 S.W.2d 473, by the Austin Court of Civil Appeals, (1937), which holding this Court approved by refusing the writ of error. The question involved in said case is very closely in point with the question involved in this case, as I here now point out.
*104Two issues involved in said case and the jury’s answers thereto were as follows:
1. “Do you find from a preponderance of the evidence that the plaintiff, Travis Howard, sustained an injury or injuries as the result of an assault and battery, if any, made upon him, the-said Travis Howard, by the defendant, Eugene Howard?
“To which the jury answered, ‘Yes.’ ”
2. “Do you find from a preponderance of the evidence that such injury or injuries, if any you have found, were inflicted by the defendant, Eugene Howard, upon the plaintiff, Travis Howard, while the said Eugene Howard was not acting in self-defense?
“To which the jury answered: ‘Defendant was acting in self-defense.’ ”
The court in its charge defined the terms assault, assault and battery, self-defense and other terms not material here. In holding that the answers to these two issues were not in conflict and that judgment was correctly entered for the defendant the court said:
“The jury apparently, in view of their answer to special issue No. 2, treated the term assault and battery as merely descriptive of the altercation involved, * * *. But issue No. 2, which submitted the element determinative of whether or not an assault and battery in violation of law had been committed, and the jury’s answer thereto, was an express and specific finding against the appellant on that issue which barred any recovery by him. That being true, we think the trial court properly reconciled these apparently inconsistent findings of the jury, and rendered a proper judgment on the clear, definite, and unambiguous finding in answer to issue No. 2.
******
“As stated, it was incumbent upon appellant to show that he sustained injuries as the result of his altercation with appellee; and, further, that such injuries were the result of an unlawful attack upon him. Both of these matters were included within special issue No. 1 [assault and battery issue]. In answer to the following issue No. 2 [the self-defense issue], the jury found that there was no assault and battery in legal contemplation. Under these circumstances, therefore, we think the trial court was authorized to reasonably construe the answer to special issue No. 1 as being the jury’s conclusion that appellant had sustained injuries, which they were asked to find, and not as a finding that appellee was guilty of an unlawful assault and battery, of which latter issue they found him not guilty in the next question submitted to them. * * * ”
It is apparent that the holding of the court is based on the premise that the issue on assault and battery is a general finding and in view of the subsequent finding of the jury in answer to the specific issue of self-defense, the jury was not passing upon the self-defense issue when it answered the issue on assault and battery. However, the Austin Court of Civil Appeals in making such a holding explicitly recognized the rule that where findings of the jury are in irreconcilable conflict they nullify each other and no judgment can be entered thereon. This court later specifically recognized the same rule in Little Rock Furniture Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.
However, this court also recognizes the general rule that it is the duty of the courts to construe verdicts as not being irreconcilably conflicting when there is any reasonable explanation of the seeming conflict. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Texas & Pacific Railway Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.
*105The question before us is controlled by-Howard v. Howard, supra. The only difference in that case and the instant case is that the defense in the Howard case was that of self-defense while here respondent’s defensive theory was his defense of property. Art. 1142 of the Vernon’s Ann.Texas Penal Code provides that violence used upon the person of another does not amount to an assault and battery when one . acts in defense of property or in defense of his own person without using more force than is reasonably necessary.
In harmony with the holding of the Howard case is the case of Redmon v. Caple, 159 S.W.2d 210, (Tex.Civ.App.), writ dismissed, w. o. m. There the jury found that the action of defendant in firing a shotgun constituted an assault upon the plaintiff which was'the proximate cause of plaintiff’s injury and further found that defendant fired to prevent or interrupt an intrusion upon lawful possession of defendant’s property. The Court of Civil Appeals held that judgment was properly entered upon the verdict for the defendant. See also Dixon v. Samartino, 163 S.W.2d 739, (Tex.Civ.App.), writ dismissed w. o. m.
In the case before us petitioner Chew alleged that respondent Gilliland committed certain violent acts against the petitioner’s person which amounted to an unwarranted and unreasonable assault and battery. Respondent Gilliland in his pleadings admitted such intentional use of violence on the person of Chew as would, standing alone, amount to assault and battery as a matter of law. The respondent further alleged and offered evidence in support thereof that in using such violence he did it in protection of the property of Rio Grande Produce Company and that in so acting he did not use more force than was necessary. The record reflects that in the trial of this case the principal controversy was not whether Gilliland committed acts which could constitute assault and battery upon the petitioner Chew, but was whether or not Gilliland in committing such acts of violence used more force than was necessary in protecting property of the Rio Grande Produce Company. I think it is a reasonable conclusion that the jury in answering issue No. 1 on assault and battery was not considering the defensive issues which were submitted as issues Nos. 12 and 13.
In distinguishing the Howard case from the instant case this court says that the opinion of the Court of Civil Appeals was not based on any lack of conflict in the issues but upon the duplicitous nature of issue No. 1 (which is set out above). Then the court quoted the said Court of Civil Appeals “ * * * where one finding is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon.” When the whole sentence from which this court quotes is considered it is found that it is not only when one finding is duplicitous and another is definite and specific, the specific controls over the duplicitous finding, but also where one finding is general and the other is specific, the specific finding controls over the general. The complete sentence is here quoted:
“But it is also a settled rule that where such apparent conflict can be reasonably reconciled; or where one finding is general and the other specific ; or even where one finding is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon.” (Emphasis added.)
It is true that issue No. 1 in the instant case is not duplicitous, but it is general. In view of the instructions and definitions given by the court, the jury in answering issue No. 1 on assault and battery in this case was required to answer five different issues: (1) Did Gilliland use force upon the person of Pon Lip Chew? (2) Was the force unlawful? (3) Was it used with intent to injure? (4) Was such force used in the defense of property? (5) Was more force used than was reasonably necessary *106under the circumstances? Strictly speaking, the whole lawsuit was tied up in this one general issue except as to damages. Whether or not this case is decided upon a reconciling of an apparent conflict or upon the basis that a specific finding controls over a general finding, the Howard case is authority for the holding of the Court of Civil Appeals in this case.
I would affirm the judgment of the Court of Civil Appeals remanding the cause.
GRIFFIN, J., joins in this dissent.