Stanfield v. Butler

¶1(dissenting).

¶2Dissenting Opinion Upon Motion for Rehearing

¶3I respectfully dissent from the action of this Court, upon rehearing, which overturns a final judgment of a court of competent jurisdiction which never reached this Court. In the very first sentence of the Court’s opinion upon the motion for rehearing, the Court mistakes the position of the Butler appellees when it says that they contend that we “should affirm the judgment of the trial court” denying the Stan-field plaintiffs a recovery. That is not the position of the Butler defendants on rehearing; instead, their contention, basically, is that since no appeal was perfected from the take-nothing judgment entered in the cause of action wherein the Stan-fields were plaintiffs, this Court lacks jurisdiction to enter any order, either of affirmance or reversal. I concur; and, in order to make my position clear, a lengthy resume of the record is necessary.

¶4The Stanfields brought suit on June 24, 1968; and, although the original petition does not appear in our transcript, the original answer thereto was filed by “Della Joy Butler, as Administratrix of the Estate of Mark L. Butler, Deceased.” This answer, consisting of a general denial, was filed on July 22, 1968.

¶5On April 4, 1969, an amended answer was filed by Della Joy Butler, as Adminis-tratrix, etc., but this was followed by a cross-action for the wrongful death of Mark L. Butler, deceased. The cross-defendants were sued as representatives of the estate of Roy Howard Stanfield, deceased, the allegations being set forth in the margin.1

¶6An answer to the cross-action was filed on behalf of Howard Stanfield and wife, Hattie Stanfield “representatives of the Estate of Roy Howard Stanfield, Deceased,” which consisted of a general denial. Thereafter, an amended petition was filed by the Stanfields “still complaining of the Estate of Mark L. Butler, Deceased,” wherein the Stanfields sought recovery under the wrongful death statute for their damages. This amended petition was filed May 12, 1969, and did not plead any defense to the Butler cross-action then on *845file. On June 5, 1969, the Stanfields filed a separate instrument denominated “First Amended Original Answer of Cross-Defendant, The Estate of Roy Howard Stan-field, Deceased” wherein “Cross-defendants, Howard Stanfield and wife, Hattie Stanfield, representing the Estate of Roy Howard Stanfield, Deceased” presented their defenses to the Butler cross-action. This pleading contained no prayer for affirmative relief, being defensive only.

¶7After the return of the jury verdict which exonerated Butler of negligence and convicted Roy Howard Stanfield of negligence proximately causing the collision, the Court entered judgment in accordance with the verdict which may now be summarized:

1. That “the plaintiffs, Howard Stan-field and wife, Hattie Stanfield, individually and as representatives of the Estate of Roy Howard Stanfield, deceased, each take nothing against the defendant the Estate of Mark L. Butler, deceased.”

2. That “cross-plaintiff, Della Joy Butler, as Administratrix of the Estate of Mark L. Butler, deceased, recover the sum of One Thousand Two Hundred Ninety-Two Dollars ($1,292.00) of and from cross-defendants, Howard Stanfield and Hattie Stanfield as representatives of and against the Estate of Roy Howard Stanfield, deceased,” [This item followed a stipulation that Butler’s estate had paid said sum as burial expense and a headstone for his grave.]

3. Recoveries, in separate paragraphs for Mrs. Butler and her several children in the amounts awarded by the jury because of the death of their husband and father, each of the recoveries being “of and from the cross-defendants, Howard Stanfield and Hattie Stanfield as representatives of and against the Estate of Roy Howard Stanfield, deceased.”

¶8The amended motion for new trial was filed on behalf of “Howard Stanfield and wife, Hattie Stanfield, plaintiffs and cross-defendants” and attacked the jury findings acquitting Butler of negligence and finding Roy Howard Stanfield guilty of negligence proximately causing the accident. The answers to Special Issues Nos. 1, 4, 6, 7, 8, 9, and 10 were each made the basis of the same attacks: (a) There was no evidence to support such finding; (b) The evidence was insufficient to support such finding; and (c) The finding was so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust. The amended motion for new trial contained twenty-one assignments (three for each of the issues mentioned) and did not contain any reference to or complaint about the jury’s answer to Special Issue No. 11, the Stanfield damage issue which was answered “none.”

¶9The order overruling the amended motion for new trial included a notice of appeal by “plaintiffs and cross-defendants, Howard Stanfield and wife, Hattie Stan-field.”

¶10The bond on appeal is a supersedeas bond and we reproduce it as an appendix to this opinion, calling attention to the fact that the instrument makes no mention of the fact that the judgment from which the appeal is taken denied the Stanfields, as plaintiffs, any recovery against the Butler estate.

¶11The brief filed by appellants contained twenty-one points which tracked precisely, even down to identical numbering thereof, the twenty-one assignments in the amended motion for new trial.

¶12Appellants’ brief is then made up of several lettered subdivisions: (A) “Statement of Facts” containing a summary of the evidence consisting of fifteen pages; (B) “Argument and Authorities” cover three pages, but no statutes, ordinances, rules, or decisions are listed; (C) “No Evidence Points” wherein the usual authorities are cited, e. g., Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), are mentioned; (D) “Insufficient Evidence Points” wherein, again, the usual authorities are to be found, e. g., In re King’s Estate, 150 Tex. *846662, 244 S.W.2d 660 (1951); and (E) a “Conclusion” wherein appellants asserted that the judgment “should be reversed and rendered in favor of Howard Stanfield and wife, Hattie Stanfield, on the liability,” and, alternatively, remanded for a new trial.

¶13There was no reference in the brief to the Stanfields, as -plaintiffs, and the brief does not contain any allusion to the contributions, if any, which the Stanfields might have reasonably expected to have received had their son not met his untimely death. In short, the brief sought to escape the judgment awarding the Butler cross-plaintiffs a recovery against the Stan-field estate.

¶14It is clear from our transcript that the Stanfields, as plaintiffs, were represented by Hon. Rudy Rice and that the Stanfields, as cross-defendants, were represented by Hon. Charles L. Smith. Each lawyer signed the separate pleadings of his clients in the posture in which they appeared in the litigation. Mr. Smith filed the original and the amended motions for new trial and executed the supersedeas bond in his capacity as attorney for the Stanfields, as cross-defendants. He prepared the brief for the appellants and argued the case. Mr. Rice did not appear in our appellate record until he filed a response, at the suggestion of this Court, after appellees’ counsel had raised the point that the new trial ordered by this Court should not include a new trial as to the Stanfields as plaintiffs, but only as to the Butler cross-plaintiffs and the Stanfields as cross-defendants representing the estate of their deceased son.

¶15Counsel for the Butlers complain, in the motion for rehearing, that we erred in reversing the judgment of the trial court and in remanding the cause for a new trial generally. As indicated above, appellants’ points which we sustained, resulting in a reversal of the judgment below, were those which attacked the jury findings that Stan-field was guilty of negligence proximately causing the collision and which exonerated Butler of negligence.

¶16The judgment also denied the Stanfields, individually and as the surviving parents of Stanfield, any recovery upon their original action. This latter adjudication was predicated, not only upon the findings on the negligence issues, but also upon the jury’s answer to Special Issue No. 11, wherein the jury answered “none” to the Stanfield damage issue.

¶17Appellants did not include in their amended motion for new trial any assignments which attacked the finding of the jury to Special Issue No. 11, nor did they include in their brief in this Court any points relating thereto. Instead, their entire attack in each instance was against the findings relating to the negligence of the two drivers. Upon this record, appellees now argue:

“The jury’s finding of ‘no damages’ to this unchallenged issue [No. 11] fully supports the take-nothing judgment entered herein, and the findings on “the liability issues were therefore immaterial as to Howard and Hattie Stanfield as plaintiffs ...” [Emphasis supplied]

¶18This argument is amplified by appellees in this manner:

“ . . . since the only complaint on appeal herein by the Estate of Roy Stan-field, Deceased, acting through Howard and Hattie Stanfield, as representatives of his estate, are to the effect that the jury should not have answered the liability issues the way they did and that the trial court should not have entered a judgment against the estate of Roy Stanfield. Howard and Hattie Stanfield, therefore, individually, are bound by the jury’s finding that they sustained no damages, and the Court of Civil Appeals erred in reversing the judgment of the trial court, in any event, insofar as it denies a recovery to Howard and Hattie Stanfield, individually.” [Emphasis supplied]

¶19I agree and would reform our judgment so that upon remand the sole question for determination upon the new trial is the *847cause of action asserted by the surviving beneficiaries of Butler against the estate of Stanfield, deceased.

¶20The judgment was severable in that. it awarded the Butlers a recovery against the Stanfield estate and denied the Stanfields a recovery against the Butler estate. Beyond question, the Stanfields had the right to appeal from a part thereof only. Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, 430 (1945). However, the case having been tried to a jury, a motion for new trial was a jurisdictional prerequisite to an appeal. Rule 324; St. Louis Southwestern Railway Company v. Duke, 424 S.W.2d 896, 897 (Tex.Sup.1967). The motion was timely filed and complained only of the errors which affected the Butler recovery, not the portion of the judgment which denied the Stanfields a recovery against the Butler estate.

¶21I do not join in the criticism of the Lewis case [Lewis v. Isthmian Lines, Inc., 425 S.W.2d 893 (Tex.Civ.App., Houston 14th Dist., 1968, no writ)] nor in an opinion which is in conflict therewith. The judgment which denied the Stanfield plaintiffs a recovery was based upon a special verdict which (a) acquitted the Butler estate of negligence, (b) convicted the Stanfield driver of negligence, and (c) found that no damages were sustained by the Stan-field plaintiffs. Being a special verdict, it is governed by the rule of law set out in Carwile v. William Cameron & Co., 102 Tex. 171, 114 S.W. 100, 102 (1908):

“[I]n case of special verdict, the facts being found by the jury, it is necessary for the court to announce the judgment, the legal conclusions thereon, because the law is not determined by the special verdict, nor are the rights of the parties fixed thereby.”

¶22See also, Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 707 (1944). And, I repeat, this judgment denying the Stanfields a recovery stands before us without being challenged.

¶23Even if we assume, arguendo, that the jurisdiction of this Court was invoked by the Stanfields, as plaintiffs [a matter of which I have grave doubt], they are still not entitled to a reversal of a judgment which finds support in a finding which they did not attack. In Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.Sup.1966), the Court said:

“Ralph sought by his suit to recover damages because of interference by Max with his use of the driveway easement. The trial court’s judgment denied him a recovery of damages. He had no point of error before the Court of Civil Appeals complaining of the denial of damages, and his claim therefore has been abandoned." [Emphasis supplied]

¶24Nor do I concur in the theory that the appellees are estopped from raising the question now under discussion because they did not raise the point in their original brief. They were under no duty to defend their take-nothing judgment against the Stanfields when it was not under attack. They replied to all of the points brought forward by the appellants and that is all that we should require of an appellee. Rule 420.

¶25Having perfected an appeal from the judgment of the trial court only insofar as it awarded a recovery to the Butlers against the Stanfield estate, it necessarily follows that we have no jurisdiction to disturb the judgment which denied the Stanfields, individually, any recovery against the Butler estate. Cf. Employees Finance Co. v. Lathram, 369 S.W.2d 927, 930-931 (Tex.Sup.1963). I would now recognize the severance which was effected by the action of the Stanfields and, upon remand of the cause, all further proceedings would be confined to the cause of action of the Butler plaintiffs against the Stanfield estate.

¶26Appendix attached.

¶27APPENDIX

¶28SUPERSEDEAS BOND

¶29WHEREAS, in the above entitled and numbered cause, pending in the 131st District Court of Bexar County, Texas, and in *848a regular term of said Court, to-wit, on the 3rd day of June, 1970, a judgment against Howard Stanfield and wife, Hattie Stan-field and the Estate of Roy Howard Stan-field, deceased, was entered wherein Della Joy Butler, as Administratrix of the Estate of Mark L. Butler, Deceased, recovered One Thousand, Two Hundred Ninety-two and No/100 Dollars ($1,292.00) ; Della Joy Butler, Individually, recovered Two Thousand Dollars ($2,000.00); Charles Leroy Butler recovered Six Thousand Dollars ($6,000.00); Russell Bud Butler recovered the sum of Nine Thousand Dollars ($9,000.00); and Pauline Ann Butler recovered the sum of Thirteen Thousand Dollars ($13,000.00), all totalling Thirty-one Thousand, Two Hundred Ninety-two Dollars ($31,292.00) with interest thereon at the rate of six per cent (6%) per annum from June 3, 1970 and all costs of suit, from which judgment the said Howard Stanfield and wife, Hattie Stanfield, and the Estate of Roy Howard Stanfield, Deceased, desire to take an appeal to the Court of Civil Appeals for the Fourth Supreme Judicial District, Sitting at San Antonio ; and

¶30WHEREAS, the said Howard Stanfield and wife, Hattie Stanfield, and the Estate of Roy Howard Stanfield, Deceased, desire supersedeas respecting such judgment:

¶31NOW, THEREFORE, we, Howard Stan-field and wife, Hattie Stanfield, and the Estate of Roy Howard Stanfield, Deceased, as principals, and The Aetna Casualty & Surety Company as surety, acknowledge ourselves bound to pay to the said Della Joy Butler, individually and as Administratrix of the Estate of Mark L. Butler, Deceased, Charles Leroy Butler, Russell Bud Butler and Pauline Ann Butler, appellees, the sum of Thirty-five Thousand Dollars ($35,000.-00), conditioned that such appellants, Howard Stanfield and wife, Hattie Stanfield, and the Estate of Roy Howard Stanfield, Deceased, shall prosecute their appeal with effect and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against them, they shall perform its judgment, sentence or decree, and pay all such damages as said Court may award against them.

¶32WITNESS OUR HANDS this 10 day of September, 1970.

HOWARD STANFIELD AND WIFE, HATTIE STANFIELD, AND THE ESTATE OF ROY HOWARD STANFIELD, DECEASED

BY /s/ Charles L. Smith_

Their Attorney

PRINCIPALS

THE AETNA CASUALTY & SURETY COMPANY

BY /s/ Neal U Clark_

SURETY (seal)

¶33APPROVED AND FILED this 11 day of Sept., 1970.

ELTON R. CUDE, District Clerk Bexar County, San Antonio, Texas