¶1 (dissenting).
¶2 I do not concur in either the majority opinion, written by Chief Justice SMITH, or the concurring opinion, written by Associate Justice SLATTON.
¶3 It is clear to my mind that the verdict upon which relator seeks a judgment by the extraordinary writ of mandamus shows on the face of the record to be a coerced verdict, and therefore not a valid verdict. The majority opinion states in effect that inasmuch as the first two verdicts were rejected by the court and a third verdict accepted by the court, those two verdicts are not a part of the record and cannot be here considered. This might be true if the attorney for relator had not seen fit to enter into a written stipulation with the attorney for respondents as to just what happened with reference to the rejecting of the first two verdicts and incorporating that written stipulation in the record he presents in connection with his application for mandamus. It seems that the attorney for relator wanted to put this Court on notice that the verdict upon which he was relying to secure this extraordinary relief was a coerced verdict and void, unless there was an irreconcilable conflict in the answers as given by the jury in the first two verdicts. It occurs to me that the matter could not be more clearly presented than by stipulation of the parties or their respective attorneys.
¶4 In the concurring opinion Justice Slatton contends that there was an irreconcilable conflict in the answers as given by the jury in the first two verdicts, and, of course, if this were true the trial judge properly refused to accept the first two verdicts. On the other hand, Art. 2205, R.C.S.1925, makes it the ministerial duty of the judge to accept a verdict when presented in open court, as was done in the case at bar, unless the verdict is informal or defective, in which event the court may direct it to be reformed at the bar or, if the verdict is not responsive to the issue submitted, the court may call the jury’s attention thereto and send them back tor further deliberation. Art. 2207, R.C.S. 1925.
¶5 The provisions of Art. 2207, supra, have been very properly construed to authorize the court to send the jury back for further deliberation, also when the trial judge discovers an irreconcilable conflict in the answers.
¶6 Let us see if there was an irreconcilable conflict in the answers of the jury in either their first or second verdict. When the jury returned their first verdict into court the judge refused to accept the verdict, but instructed the jury, in effect, to retire and reconcile a conflict between their answers to issues Nos. 3 and 4. These two issues are copied in full in Justice Slatton’s *148 concurring opinion, and will not be here set out. By referring to these two issues it will be seen that the jury, in their first verdict, found, in answer to issue No. 3, that Ismiel Montalvo, the driver of defendant’s truck, did not fail to apply the brakes, and in answer to issue No. 4, that if Montalvo did fail to apply his brakes it would have been negligence. The jury were instructed not to answer issue No. 4, if they answered issue No. 3, “No.” Notwithstanding this instruction, the jury answered issue No. 4; therefore, the court should have ignored the answer to issue No. 4. Furthermore, issue No. 4, being asked conditionally, that is containing the terms, “if any,” and “if you have so found,” their answer “yes” to this issue was meaningless, inasmuch as they had previously found there was no failure.
¶7 As was said by Judge Smedley of the Texas Commission of Appeals, in Traders & General Ins. Co. v. Ross, 117 S.W.2d 423, 425, quoting: “Special Issue No. 10 should not have been answered at all, as the jury was told to answer it only in the event that it answered Special Issue No. 9 in the affirmative. But as answered this issue means nothing more than that the jury found that if there was any partial incapacity it was not permanent. It is not to be taken as a finding that there was in fact partial incapacity. Issue No. 11 should not have been answered. The jury was instructed to answer it if it answered Issue* No. 10 ‘no’ but, as above shown, it should have given no answer to issue No. 10, because it had answered Issue No. 9 ‘no.’ And like the answer to Issue No. 10, the answer to Issue No. 11 cannot be considered a finding that there was partial incapacity, because the answer, in view of the form of the issue, means that the jury finds that if there was any partial incapacity it continued for 300 weeks. We think, therefore, that there is no finding of partial incapacity and consequently no conflict with the finding of total incapacity of 300 weeks on which the judgment was based.”
¶8 See also Speer’s Law of Special Issues, p. 573, § 444.
¶9 Thus it is seen that the trial judge was clearly wrong in concluding that there was an irreconcilable conflict between special issues Nos. 3 and 4, and in refusing to perform his ministerial duty of accepting the verdict.
¶10 If the first verdict had been accepted by the trial judge it would have supported a judgment for the defendants, as it would have been a finding of negligence on the part of the defendants, contributory negligence on the part of plaintiff, and a finding against plaintiff on his plea of discovered peril.
¶11 Likewise, when the verdict was returned the second time, there was no irreconcilable conflict and the verdict should have been accepted by the court and judgment entered for the defendants. The court refused to receive this verdict, but suggested to the jury that there was a conflict between their answers to special issues Nos. 9, 10, and 11. The jury then retired and changed their answer to special issue No. 9, from “No” to “Yes,” and this time their verdict was received.
¶12 The trial court was mistaken in believing there was a material conflict between the answers to special issues Nos. 9, 10 and 11.
¶13 By their answer to issue No. 9, the jury found that Montalvo did not discover the perilous position of plaintiff’s husband, John Friske, in time, by the use of the means at his command, etc., to have avoided the collision. The jury answered special issue No. 10, “Yes,” but in view of the conditional form of the issue (paraphrasing the language of Judge Smedley quoted above), as answered this issue means nothing more than that if Montalvo did discover the perilous position of John Friske in time, etc., then and in that event he did not use ordinary care, etc., to have avoided the’ collision, which finding, of course, is meaningless, in view of the jury finding that he did not make any such discovery.
¶14 The jury answered special issue No. 11, “Yes,” but (again paraphrasing the language of Judge Smedley), in view of the conditional form of this issue the jury’s answer to this issue meant nothing more than if Montalvo did discover the perilous position of Friske in time, etc., and if he did fail after such discovery to use the means at his command, etc., to avoid the collision, then, and in those events, such failure would have been a proximate cause of the collision. This finding was meaningless and did not conflict with issues No. 9 or 10.
¶15 Thus the jury having been twice sent back to further consider their verdict, with a positive instruction that their answers were in conflict, which instructions were erroneous and given over the objection of the defendant, the third verdict became a coerced verdict at the hands of the judge, *149 ■and therefore an invalid verdict and one upon which a judgment could not properly be based. Fort Worth & Denver City R. Co. v. Lowrie, Tex.Civ.App., 271 S.W. 263; Davis v. Davis, Tex.Civ.App., 237 S.W. 619.
¶16 It is my opinion that if either application for mandamus should be granted herein, it should be the mandamus applied for by •respondents in their cross-action. It is no more the ministerial duty of a court to ■enter judgment on a valid verdict than it is to receive a valid verdict when it is presented to him in open court and in the manner provided for in Art. 2205, supra.
¶17 I therefore respectfully dissent to the majority and concurring opinions.
¶18 (concurring).
¶19 The writer concurs in the opinion of Mr. Chief Justice SMITH. The respondents, Stevenson and Montalvo, are not entitled to the writ of mandamus for the reasons stated, and for the further reason, that the answers made by the jury, as shown by the jury’s first and second reports given to the trial court, presented conflicts upon material issues which nullify each other so that no proper judgment could be entered thereon for the defendants below, the respondents here. This is disclosed by the stipulation signed by the attorneys of record and the court, which accompanies the record before us. Said stipulation recites that the jury reported to the court, that a verdict had been reached, and upon reading the same in open court special issue No. 3, and special issue No. 9,; had been answered “No”; all other answers were the same as above set out. Thereupon the trial court advised the jury (over the objection of respondents) that in his opinion the answers given to issues Nos. 3 and 4 were inconsistent and conflicting and retired the jury for further consideration of their verdict. Thereafter the jury returned into court with their verdict, which was the same as before, except the answer to special issue No. 3 *146 had been changed from “No” to “Yes”. Thereupon the trial court, at the suggestion of counsel of relator, advised the jury that in his opinion the answers of the jury to special issues Nos. 10 and 11 were inconsistent and in conflict with the answer of the jury to special issue No. 9, and retired the jury to further consider their verdict. Thereafter the jury returned into court their verdict, which was the same as the second report, except the answer of the jury to special issue No. 9 had been changed from “No” to “Yes.”
¶20 The first report made by the jury contained inconsistent answers to special issues Nos. 3 and 4:
¶21 “Special Issue No. 3: Do you find from a preponderance of the evidence that the defendant, Ismiel Montalvo, at the time of the collision in question, failed to apply the brakes on said truck after John Friske started to make a left hand turn across the highway to go into the drive on the west side of the highway? Answer ‘Yes’ or ‘No.’ ”
¶22 The jury answered “No” in their first report.
¶23 "If you have answered the last preceding question ‘Yes’ then answer the following :
¶24 “Special Issue No. 4: Do you find from a preponderance of the evidence that such failure, if any, on the part of Ismiel Mon-talvo to apply the brakes on said truck after John Friske started to make the left-hand turn across the highway, if you have so found, was negligence as that term has been defined to you? Answer ‘Yes’ or ‘No.’ ”
¶25 The jury answered “Yes.”
¶26 In addition to being inconsistent, the answers made by the jury were not responsive,. as the court had charged the jury that “If you have answered the last preceding question ‘Yes’ (Special Issue No. 3), then answer the following (Special Issue No. 4)
¶27 Moreover, the jury, in both the first and second reports, by their answers to special issues Nos. 8, 9, 10 and 11, found:
¶28 “Special Issue No. 8: Do you find from a preponderance of the evidence that John Friske immediately before the collision in question, was in a perilous position? Answer ‘Yes’ or ‘No.’
¶29 “We, the jury answer: Yes.
¶30 “Special Issue No. 9: Do you find from a preponderance of the evidence that the defendant Montalvo on the occasion in question discovered the perilous position of said John Friske, if you have found that he was in a perilous position, in time, by the use of all the means at his command, consistent with his own safety and the safety of his passengers and truck, to avoid the collision? Answer ‘Yes’ or ‘No.’
¶31 “We, the jury, answer: No.
¶32 “Special Issue No. 10: Do you find from a preponderance of the evidence that said Montalvo, at the time and place in question, after discovering the perilous position of John Friske, if he did discover it, failed to use ordinary care in the use of the means at his command consistent with his own safety and the safety of his passengers and truck, to avoid the collision and injuries to John Friske? Answer ‘Yes’ or ‘No.’
¶33 “We, the jury, answer: Yes.
¶34 “If you have answered the last preceding question in the affirmative, then answer special issue No. 11.
¶35 “Special Issue No. 11: Do you find from a preponderance of the evidence that such failure on the part of Montalvo to use ordinary care in the use of the means at his command, consistent with his own safety and the safety of his passengers and truck, to avoid the collision and injuries to John Friske, if you have so found, was a proximate cause of the collision? Answer ‘Yes’ or ‘No.’
¶36 “We, the jury, answer: Yes.”
¶37 By the answer to special issue No. 8 Friske was found to be in a position of peril.
¶38 The answer of the jury to special issue. No. 9, in the first and second reports, found that Montalvo did not discover the perilous position of Friske in time, etc. •
¶39 However, by the answers of the jury to special issues Nos. 10 and 11, it is found, in effect, that Montalvo, after discovering the perilous position of Friske failed to use ordinary care by the use of the means at his command to avoid the collision and that such failure upon the part of Montalvo to use ordinary care after discovering Friske’s perilous position was a proximate cause of the collision.
¶40 The finding of the jury by their answer to special issue No. 9, if not destroyed by their answers to special issues Nos. 10 and *147 11, would constitute a complete defense to the cause of action of relator upon the theory of discovered peril, but such finding has no more dignity than have the findings contained in special issues Nos. 10 and 11. The findings of the jury contained in special issues Nos. 10 ánd 11, construed in the light of appropriate definitions of “ordinary care” and “proximate cause” which were included in the charge, must mean that, but for the failure of Montalvo to use ordinary care, after he discovered the perilous position of Friske, the collision and the injuries would not have occurred. If these findings be true, then the finding contained in special issue No. 9 cannot be true; they nullify each other. Southwest Bitulithic Company v. Dickey, Tex.Civ.App., 28 S.W.2d 264; Texas Motor Coaches, Inc., v. Palmer et ux., Tex.Sup., 121 S.W.2d 323.
¶41 By other findings the jury had convicted the respondents of primary negligence, and that such negligence was a proximate cause. Likewise, the jury had convicted the relator’s actor with contributory negligence, and that such contributory negligence was a proximate cause. Thus, the only theory of recovery remaining was that of discovered peril. The issues under that theory being destructive, as we have seen, the trial court could not properly render a judgment upon such a verdict, had the same been received by the court.
¶42 It has been ruled in this State that when a case is submitted to a jury upon special issues, and the jury by their answers make •conflicting findings upon material issues, the trial court should point out the conflicts and retire the jury to further consider their verdict. Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153. This must be true for the obvious reason that such a verdict cannot support a judgment. And hence, to not allow the trial court to refuse to accept such a verdict and retire the jury for further consideration, in order to allow the jury to arrive at a proper verdict, would be a judicial paradox.