Ruth Verlee BRADFORD et al., Petitioners, v. Alex ARHELGER, Jr., Respondent, 340 S.W.2d 772

SMITH, Justice. Mrs. Bradford brought this suit against Alex Arhelger, Jr. to recover damages for personal injuries and for the death of her husband that resulted from an automobile collision. The jury made the following findings: (

a) that respondent Arhelger was negligent in failing to keep a proper lookout and in operating his automobile partially on the left-hand side of the road, and that each such act of negligence was a proximate cause of the collision; (

b) that C. D. Bradford was negligent in failing to keep a proper lookout; in failing to have his automobile under proper control; in operating his automobile partially on the left-hand side of the road; that each of such acts of negligence was a proximate cause of the collision; and (

c) that the collision was an unavoidable accident. Mrs. Bradford filed a motion for mistrial alleging an irreconcilable conflict in respect to these findings. The trial court overruled that motion and entered judgment for respondent Arhelger on the jury’s verdict. That judgment has been affirmed by the Court of Civil Appeals, 328 S.W.2d 317. The controlling question presented here is whether or not the answers of the jury to the special issues are in such irreconcilable conflict that the judgment entered on the verdict must be reversed for a new trial. Admittedly, A. B. C. Stores, Inc. v.

Taylor, 1941, 136 Tex. 89, 148 S.W.2d 392, is directly in point and fully supports petitioners’ contention, and the question now before us is whether or not the later case of Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, overruled A. B. C. sub silento. In Little Rock this court again approved the statement contained in Howard v.

Howard, Tex.Civ.App., 102 S.W.2d 473, 475, wr. ref., viz.: “The test in such [a] case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.” [148 Tex. 197, 222 S.W.2d 991.] The court then said: “To apply this test, 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.

It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.” Here, the court has rendered judgment for the defendant.

We are confronted with two conflicts — a conflict between the finding of unavoidable accident and the finding that the defendant’s negligence was a proximate cause of the injuries, and a conflict between the finding of unavoidable accident and the finding that the plaintiff’s negligence was a proximate cause of the injuries.

Applying the test of the Little Rock case to the first conflict: If we disregard the finding of unavoidable accident but take into consideration all of the rest of the verdict, a judgment for the defendant would be required because of the finding that the plaintiff’s negligence was a proximate cause of the collision.

If we disregard the finding that the defendant’s negligence was a proximate cause of the collision and consider all of the rest of the verdict, a judgment for the defendant would also be required because there would be no finding that the defendant was negligent or that such negligence was a proximate cause of the collision. Applying the test to the second conflict: If we disregard the finding of unavoidable accident and consider all of the rest of the verdict, a judgment for the defendant would be required because of the finding that the plaintiff’s negligence was a proximate cause of the collision.

If we disregard the finding that the plaintiff’s negligence was a proximate cause of the collision and consider all of the rest of the verdict, we are left with findings that the defendant’s negligence was a proximate cause of the collision and that the collision was an unavoidable accident. Quite obviously, in that situation a judgment could not be rendered for the defendant. The situation which then confronts us is just as though the jury had found that the plaintiff was not negligent, that the defendant’s negligence was a proximate cause of the collision and that the collision was an unavoidable accident.

Such findings are themselves in fatal conflict and will not support a judgment. Bransford v. Pageway Coaches, 129 Tex. 327, 104 S.W.2d 471; Texas Interurban Railway Co. v. Hughes, Tex.Com.App., 53 S.W.2d 448. The result of a strict application of the Little Rock test to the jury findings in the case before us is that in three situations a judgment for the defendant would be required, but in the fourth situation no judgment could be rendered for either party. In the fourth situation, the only order that could be rendered would be one of mistrial.

It is true that under no conceivable application of the test could a judgment be rendered for the plaintiff, and it may be conceded that in approving the test announced in Howard v. Howard in the Little Rock case, the court was of the opinion that an application of the test would always result in resolving the findings so that in all instances a judgment could be rendered either for the plaintiff or the defendant. The instant case presents jury findings which clearly indicate that this particular concept was unsound.

To that extent the Little Rock rule must be qualified, for we cannot permit a verdict to stand when the findings are in such conflict that an application of the Little Rock rule develops a situation in which a judgment could not be entered for either party. We conclude, therefore, that A. B. C. Stores, Inc. v. Taylor, was not overruled by Little Rock Furniture Mfg. Co. v. Dunn, and that consequently the decision here is ruled by the A. B. C. Stores case. The judgments of the courts below are reversed and this cause remanded to the trial court for another trial.

GRIFFIN, CULVER, GREENHILL, and HAMILTON, JJ., dissenting.