Brown v. Gonzales

On Appellant’s Motion for Rehearing

CADENA, Chief Justice.

Appellant’s motion for rehearing is overruled. Ordinarily, since the motion for rehearing presents nothing which was not forcefully argued in appellant’s brief, it would be overruled without written opinion. However, since the dissenting opinion by Justice Tijerina, at the very least, suggests that Justice Cantu, the author of the original opinion, applied the wrong test in disposing of the case, an answer to such dissent seems to be in order.

Our dissenting brother “would reverse and remand this cause for a redetermination of damages”. Such a conclusion necessarily rests on a determination that appel-lee’s negligence was conclusively established or established as a matter of law so that the question of appellee’s negligence should not have been submitted to the jury. The propriety of severing the issues concerning appellee’s liability from the damage issues and remanding only for a determination of damages will be the subject of later comment in this opinion.

Since Justice Cantu’s opinion contains a fair and detailed summary of the evidence in this case, there is no occasion to add to that summary in this opinion.

Since the burden of proving that appellee was negligent was on appellant, his complaints based on the effect of the evidence must be that the refusal of the jury to find that appellee was negligent cannot stand because such negligence was established as a matter of law or, alternatively, because such refusal was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust and unfair.

Where an appealing plaintiff complains of the failure of the jury to find defendant negligent and contends that the evidence established negligence as a matter of law, the reviewing court cannot always dispose of the contention by pointing to evidence tending to show that defendant was not negligent. Of course, if there is evidence of probative force that defendant was free of negligence, the inquiry by the appellate court need proceed no farther and the point will be overruled. But the fact that there is no such evidence does not result in a determination that the defendant’s contention must be upheld. A plaintiff cannot contend that a finding of negligence is compelled because defendant failed to produce evidence that he was not negligent. Such a rule would clearly amount to shifting the burden of proof from plaintiff to defendant concerning an issue which plaintiff must prove in order to recover. If there is no evidence that defendant exercised due care, the appellate court must then turn to a consideration of all of the evidence in order to determine whether the evidence is such that the only tenable conclusion would be that the defendant was guilty of negligence. While this process requires that the court consider evidence which would be destructive of the verdict, it does not mean that only the evidence supporting a finding of negligence will be considered. Other *866 testimony, such as evidence which would justify a disregard by the jury of the evidence tending to show that defendant was negligent, must be considered. For example, evidence impeaching the witnesses on whose testimony plaintiff relies would certainly prevent the conclusion that negligence had been established as a matter of law.

Justice Cantu’s opinion fairly summarizes all of the evidence, including inconsistencies in the testimony of the witnesses and circumstances tending to excuse defendant’s conduct, and correctly concludes that negligence was not established as a matter of law.

Attention may properly be called to the incorrect conclusion stated in the dissenting opinion that a distinction may be drawn, based on Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.—San Antonio 1951, no writ), “between negligence as a matter of law and a ‘no evidence’ point.” Hoey , iii considering a contention that evidence established negligence as a matter of law, did adhere to the rule that if the evidence is such that the only conclusion which can be drawn by reasonable minds is that defendant was negligent, the fact of .defendant’s negligence is conclusively established. But the conclusion that the “reasonable minds” test is applicable only when the reviewing court is considering a contention that negligence was established as a matter of law is completely untenable. At least since 1896 the Supreme Court has applied that test in cases where the contention was that there was no evidence to support a finding of negligence. Choate v. San Antonio & A.P. Ry., 90 Tex. 82 , 37 S.W. 319 (1896). In Woods v. Townsend, 144 Tex. 594 , 192 S.W.2d 884, 886 (1946), our Supreme Court clearly stated, in a case where appellant contended that there was “no evidence” to support a jury finding that a fact existed, that the test was whether reasonable minds could reach the conclusion reached by the finder of fact. The distinction suggested by the dissenting opinion is necessarily based on the assumption that Hoey v. Solt, supra, a decision by a Court of Civil Appeals with no writ history, overruled prior Supreme Court decisions which were not mentioned in the Hoey opinion. A “distinction” based on such a patently incorrect assumption cannot be seriously considered.

Lovell v. Sandford, 378 S.W.2d 399 (Tex.Civ.App.—Austin 1964), rev’d., 386 S.W.2d 755 (Tex.1965), like Hoey , contains no language suggesting the distinction on which the dissenting opinion appears to be based. The Austin Court of Civil Appeals, it is true, held that the evidence established negligence as a matter of law and, as did Hoey , applied the “reasonable minds” test, but it did not even hint that it was somehow overruling prior Supreme Court decisions. The Supreme Court disagreed, holding that negligence had not been established as a matter of law.

The test which is applied in the dissenting opinion is not easily discovered. The dissenter tells us that he has reviewed the evidence “in the light most favorable to the appellee.” The dissenter’s only reference to the evidence is found in the fifth paragraph of the dissenting opinion. This review of the evidence “in the light most favorable to appellee” refers only to evidence favorable to appellant. The basis for the statement that the review of the evidence in the light most favorable to appellee justifies the conclusion that appellant established the existence of negligence as a matter of law is, perhaps, found in the statement in the dissenting opinion that the conclusion follows because “there is no evidence of extenuating circumstances mitigating the presumption of negligence .... ” A review of the evidence which begins with a “presumption of negligence” and easts on the appellee the burden of producing evidence “mitigating the presumption” of negligence falls somewhat short of meriting the classification of a review of the evidence “in the light most favorable to the appellee.”

The dissenting opinion then, appears to be based on a distinction which does not exist, buttressed by a misallocation of the burden of proof. The fact that the shifting of the burden of proof is based on a presumption which, like the purported distinc *867 tion does not exist, does not make the dissenting opinion more acceptable.

In any event, the conclusion that the cause should be remanded for a retrial restricted to the issue of damages is indefensible. The jury found that appellant was guilty of contributory negligence. Because the comparative negligence issue was conditionally submitted, it was not answered by the jury, since the jury was instructed to answer that issue only if both appellant and appellee were found guilty of negligence. Under these circumstances, even if it be assumed that appellee’s negligence was conclusively established there is no basis for the dissenter’s conclusion that all of the damages flowed solely from appellee’s negligence.

It is true that Rule 434, Tex.R.Civ.P. permits this Court, where the record reflects reversible error which affects only a clearly separable part of the judgment, to reverse and order a new trial only as to the portion affected by the error. But the rule goes on to provide, in simple and unambiguous language, that a separate trial “on unliquidat-ed damages alone” cannot be ordered if the liability issues are contested.

The suggestion that the retrial be limited to the issue of damages must be summarily rejected, even if the contention that appel-lee’s negligence was completely established is accepted.

The dissenting opinion does contain the statement that the evidence “is factually insufficient to support the jury findings.” As already pointed out, an answer adverse to the party who has the burden of proof on an issue requires no support in the evidence. Assuming that the statement concerning the factual sufficiency of the evidence was intended as a statement that the jury’s failure to find that appellee was negligent is contrary to the overwhelming weight and preponderance of the evidence, and further assuming that such a conclusion finds support in the record, it would not support a judgment based on the theory that liability has been conclusively established and that all that remains to be determined is the amount of damages. Banks v. Collins, 152 Tex. 265 , 257 S.W.2d 97 (1953).