Agnew v. Coleman County Elec. Co-op.

Decision Date24 November 1954
Docket NumberNo. A-4572,A-4572
Citation272 S.W.2d 877,153 Tex. 587
PartiesHoyt L. AGNEW, Petitioner, v. COLEMAN COUNTY ELECTRIC COOPERATIVE, Inc., Respondent.
CourtTexas Supreme Court

Bob Huff, J. H. Splawn, Jr., Ted Odom, Lubbock, for petitioner.

Strasburger, Price, Kelton, Miller & Martin, W. M. Taylor, Jr., Dallas, for respondent.

GRIFFIN, Justice.

This cause is a suit for damages filed by petitioner as plaintiff against respondent as defendant. Plaintiff alleged certain acts of negligence on the part of the driver of a truck belonging to defendant, and being at the time of the collision operated in the business of the defendant. The collision occurred at a time when plaintiff was attempting to overtake or pass on the left of defendant's truck. Upon a trial to a jury, a verdict was returned convicting defendant of negligence which was a proximate cause of plaintiff's injuries and resulting damages. The verdict likewise absolved plaintiff of any contributory negligence. In its answer to plaintiff's petition the defendant pleaded contributory negligence only in general terms. Plaintiff lodged no exceptions to this general allegation, and went to trial upon such general plea. Upon the trial an issue was raised as to whether or not plaintiff had sounded the horn on his car as he was attempting to pass the defendant's truck. In its charge to the jury, the court submitted the matter of contributory negligence generally, and as fully as alleged by the defendant's answer. Defendant filed no objections or exceptions to such submission. The defendant did request an issue inquiring whether plaintiff failed to blow the horn on his automobile when he attempted to pass defendant's truck, and if so, was such failure negligence and a proximate cause of the collision. The court refused such requested special issue, and defendant properly noted its exceptions to such action. Plaintiff says the trial court was not in error in so refusing such special issue because (1) defendant had pleaded contributory negligence only in general terms, and the court had submitted appropriate issue in the language of such pleading, and defendant not having objected to such submission, was not entitled to have submitted issues pointing out specific acts of negligence on the part of the plaintiff, and (2) there was neither evidence nor pleading to support such specific submission as requested, or, in the alternative, that the evidence was insufficient to sustain an affirmative finding to such requested issue. Upon appeal the Court of Civil Appeals held that defendant's requested instruction should have been given, and reversed and remanded the cause for another trial. 265 S.W.2d 911. The opinion of the Court of Civil Appeals fully sets out the facts of the case, and analyzes and discusses the authorities applicable to the error complained of, and has correctly decided that the authorities require that the requested issue and its correlative issues of negligence and proximate cause be given.

Plaintiff, who is petitioner herein, contends that in the absence of any pleading by the defendant setting out the specific negligent acts of plaintiff covered by the issue requested, Rule 94, Texas Rules of Civil Procedure, denies defendant the right to have such requested issue submitted. Plaintiff further contends that Rules 67, 277 and 279, Texas Rules of Civil Procedure, prevent such submission. Rule 67 covers 'Amendments to Conform to Issues Tried Without Objection' and the last clause reads: '* * * provided that written pleadings, before the time of submission, shall be necessary to the submission of special issues, as is provided in Rules 277 and 279.'

Rule 94 has to do with affirmative defenses, and requires that all affirmative defenses including contributory negligence shall be set forth 'in pleading to a preceding pleading'. It is to be noted that Rule 94 permits pleading of contributory negligence generally, and that this Rule makes no requirement that specific acts of contributory negligence be set out in such pleading. There is a further provision of Rule 94 as to defenses against suit upon insurance contracts stating that the insurer shall never 'be allowed to raise such issue (i. e., that the loss was due to a risk or cause coming within any of the exceptions specified in the insurance contract) unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability'. In view of the language of Rule 94, in its entirety, we do not believe that it can be held that a general plea of contributory negligence will not support issues based upon specific acts of negligence, when justified by the evidence introduced under such general plea. If the opposite party desires more specific allegations as to contributory negligence, he is entitled to have them, upon his lodging an appropriate exception to such general pleading.

The reasoning upon which the authorities hold that a general plea of contributory negligence will sustain submission of specific acts of negligence, when supported by the evidence, and requested by the party desiring such submission, is that if the plea is sufficient to permit the introduction of testimony as to specific acts, then it is sufficient to sustain the submission of issues regarding such specific acts. 'If the facts grouped in the appellant's charge were admissible under the plea of contributory negligence, and the charge was correct, it should have been given. A defendant may plead contributory negligence in general terms, and, if not excepted to, the plea will authorize the introduction of testimony to establish the fact of negligence. (Western Union) Telegraph Co. v. Jeanes, 1895, 88 Tex. 230, 31 S.W. 186. The pleadings furnish the standard by which the court determines the admissibility of evidence, but it is the duty of the court to instruct 'the jury as to the law arising on the facts.' Rev.St. art. 1317.' (Emphasis added.) Rule 272, Texas Rules of Civil Procedure; Gulf, C. & S. F. R. Co. v. Mangham, 1902, 95 Tex. 413, 67 S.W. 765, 766, 41B Tex.Jur. 518.

The case of Western Union Telegraph Co. v. Jeanes, 88 Tex. 230, 31 S.W. 186, 187, by Gaines, C. J., cited in the opinion in the above case holds: 'The answer of the defendant did not plead specifically the failure to send an answering message as contributory negligence, but it averred, generally, that the plaintiff's 'injuries were caused directly and proximately by plaintiff's own negligence.' If specially excepted to for generality, the averment should have been held bad. But no exception was interposed, and the allegation was sufficient to admit proof of the defense. May v. Taylor, 22 Tex. 348.' (Emphasis added.)

Plaintiff contends that the quotations from the authorities as set out in the Court of Civil Appeals' (265 S.W.2d 914) opinion to the effect that a "general plea of contributory negligence not excepted to is sufficient to warrant submission of the issue either generally or in such respective groups of issues as may be made by the evidence, if submission is requested" means that the defendant herein was only entitled to one or the other-a general submission, or a special submission, but not both; that the court, having given a general submission, no error was committed by the court's refusal to give the requested special submission. In all the cases cited which involve the exact point raised here, and where it was held error not to give the special submission, a general submission was also given. Not a single one of such cases holds that by being given a general submission the defendant is deprived of his right to have the issue submitted specially. On the contrary, all hold it error to refuse the special submission.

In addition to the Mangham case, supra, the following cases, wherein a general submission was given, hold error to refuse the special submission. In some of these cases there were objections to the general submission, and in others there were no objections. Schumacher Co. v. Shooter, 1939, 132 Tex. 560, 124 S.W.2d 857, reversed a holding of the Court of Civil Appeals that it was not error to refuse the special submission requested by defendant where contributory negligence was only plead generally, and the trial court had given only a general submission. The Court of Civil Appeals had sustained the contentions of plaintiff therein, which contentions were along the same lines as are urged on this appeal. In the case of Owl Taxi Service v. Saludis, Tex.Civ.App.1938, 122 S.W.2d 225, writ dismissed, w. o. j., the exact point was raised as is here urged. No exception or objection was urged to the trial court's general submission of contributory negligence, but special issues as to specific acts were requested and refused. The Court of Civil Appeals held error. This case is cited with approval in our Schumacher Co. case, supra. See also the following cases which hold to the same effect: Stewart v. Galveston, H. & S. A. R. Co., 1904, 34 Tex.Civ.App. 370, 78 S.W. 979, writ refused; Houston, E. & W. T. R. Co. v. Lynch, Tex.Civ.App.1919, 208 S.W. 714, no writ history, wherein the Court of Civil Appeals on original submission held no error, but on rehearing changed the opinion so as to hold error; Southern Iron & Machine Co. v. Portugal, Tex.Civ.App.1932, 53 S.W.2d 685, no writ history; Spears Dairy, Inc., v. Bohrer, Tex.Civ.App.1932, 54 S.W.2d 872, writ dismissed; English v. Blackwood, Tex.Civ.App.1939, 128 S.W.2d 895, dismissed, correct judgment.

Plaintiff says that all of the above cases were prior to the adoption of the new rules of civil procedure in 1941, and that many of these were submissions on general charge rather than upon special issues. This statement is correct, but in the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, 522, Justice Greenwood says:

'The right of a party plaintiff or defendant to have all fact issues submitted to, and determined by,...

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