Cannon Ball Motor Freight Lines v. Grasso

• Decision Date: 22 February 1933
• Docket Number: No. 9013.,9013.
• Citation: 59 S.W.2d 337
• Parties: CANNON BALL MOTOR FREIGHT LINES et al. v. GRASSO et al.
• Court: Texas Court of Appeals

Page 337

59 S.W.2d 337

CANNON BALL MOTOR FREIGHT LINES et al. v. GRASSO et al.

No. 9013.

Court of Civil Appeals of Texas. San Antonio.

February 22, 1933.

Rehearing Denied April 12, 1933.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Volker Grasso and others against the Cannon Ball Motor Freight Lines and another. From the judgment, defendants appeal.

Reversed and remanded.

Eskridge & Groce and Geo. T. Rice, all of San Antonio, for appellants.

Champe G. Carter, Randolph L. Carter, H. C. Carter, and Perry J. Lewis, all of San Antonio, for appellees.

MURRAY, Justice.

Volker Grasso, appellee herein, brought this suit against the Cannon Ball Motor Freight Lines, a corporation, and the Universal Casualty Company, also a corporation. He sought damages for injuries sustained by him as a result of a collision between the automobile he was driving and a truck belonging to the defendant freight lines. Grasso further alleged that the casualty company had issued to the freight lines a casualty insurance policy required by the laws of this state, and the regulations of the Railroad Commission. He also alleged the insolvency of the freight lines.

A plea in abatement, setting up misjoinder of parties and causes of action by the casualty company, was overruled by the court below.

The first proposition made by appellants is as follows:

"Where, as was this one, a case is submitted to the jury on special issues, there being fourteen special issues relative to defendant's negligence and plaintiff's contributory negligence, it was error for the court to include in the charge just before the fifteenth special issue, being on the amount of damages, the following:

"`If in response to the foregoing question you have answered that the defendant's truck was operated in a negligent manner, and that such negligence, if any, caused the injury to the plaintiff, and if you have also answered that the plaintiff was not guilty of negligence contributing to the accident, then you will answer the following question, otherwise you need not answer the following question.'

"The said matter having been duly objected to because the same informed the jury of the effect of their answers and is in effect a general charge."

Articles 2189 and 2190, Revised Statutes 1925, construed together, provide, among other things, that, when the court submits a case upon special issues, he shall submit all the issues made by the pleading. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately. In submitting special issues, the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.

Under these provisions it is well settled that the giving of a general charge along with special issues is error. Kemper v. Police & Firemen's Ins. Ass'n (Tex. Com. App.) 48 S.W.(2d) 254; St. Louis S. W. R. Co. v. Hudson (Tex. Com. App.) 17 S.W.(2d) 793; Radford Grocery Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218; Texas & Pac. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Roberts v. King (Tex. Civ. App.) 49 S.W.(2d) 991, 992; Solo Serve Co. v. Howell (Tex. Civ. App.) 35 S.W.(2d) 474. In the case of Roberts v. King, supra, Chief Justice Fly uses the following language: "It is apparent that the charge is a flagrant violation of the law and the decisions, against the intermingling of the submission of special issues and general charges."

It is equally as well settled in this state that it is error for the court or counsel to inform the jury of the legal effect or ultimate result of their answers where they do not already know such result. In the same case of Roberts v. King, supra, Chief Justice Fly also uses this language: "In theory, at least, the jury is not supposed to know the ultimate result of their answers to special issues, and it is necessarily inappropriate and prejudicial to indicate the result of answers to questions propounded. The charge was fully excepted to by the appellants, and such exceptions have been duly presented to this court, and must be sustained." There are many authorities upon this point; the following are some of them: Wichita Valley R. Co. v. Southern Casualty Co. (Tex. Com. App.) 284 S. W. 940; Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213.

From the authorities above cited, it is apparent that, if the charge complained of was a general charge, or if it informed the jury of the effect of their answers to the special issues submitted to them, it was an improper charge. We feel that the exception was well taken to this charge, and that it should not have been given over appellant's objection. In the first place, it was not necessary to tell the jury to answer issue No. 15 only in the event they found that appellant was guilty of negligence and that appellee was not guilty of contributory negligence. The jury could have answered the amount of damage appellee had suffered, regardless of whether he was guilty of contributory negligence or whether or not appellant was guilty of negligence. The question of negligence would have had an all-important effect upon the ultimate result of their answers, but could not assist them in any way in determining the amount of damages. Appellee seeks to justify this instruction by the court upon the ground that the jury may have already answered that the appellant was not guilty of negligence and that the appellee was guilty of contributory negligence, and then be unable to agree as to the amount of damages; thus resulting in a hung jury.

If a jury reports to a court that they have answered part of the issues, but are unable to agree upon the answer to some of the other issues, then it would become the duty of the court, if he regarded the jury as hopelessly hung, to instruct them to answer such questions as they were able to answer, to sign and return their verdict, and, if on examination it be found that they had answered sufficient questions to support a judgment, a mistrial would be averted. This charge was not a necessary instruction. The effect of it was to tell the jury that, unless they found that appellant was guilty of negligence, causing the collision, and appellee was not guilty of contributory negligence, they could not find for appellee in any amount. This is a general instruction, and also tells the jury of the ultimate effect of their answers to at least thirteen of the preceding fourteen special issues. It might be contended that this instruction coming after all but the last issue would not furnish them information until after such issues had been answered. We do not think this would keep the instruction from being harmful. In the first place, the judge is required to read the charge to the jury, and thus it will be seen that before they retire to deliberate they have heard the entire charge read. But we will say this made no impression upon them, and that in their deliberations they took up the issues in their numerical order, answering them in the same order, then, before answering the fifteenth issue, they read this instruction, and are thereby directed to check back over their answers and ascertain whether or not they have found in a certain way on each issue, and, unless they have done so, there can be no amount of damages, then it is discovered that they have found that there was contributory negligence, and therefore they cannot answer the amount of damages. The jury could then change their answers so as to permit the party that they desired to win to recover judgment. This would destroy the very purpose of special issues, and is condemned by a long line of decisions, some of which are cited above.

Appellee points out that this instruction does not tell the jury not to state the amount in the event they have found that the collision was an unavoidable accident. This further illustrates that the instruction was unnecessary. If the jury was permitted to find the amount of damage, even though the collision was an unavoidable accident, they might as well do so, even though they had found that the defendant was not guilty of negligence and that the plaintiff was guilty of contributory negligence.

Appellants' second proposition raises the question of misjoinder of parties and causes of action, in that the insurance company was joined with the alleged negligent party. It is plain from an examination of the record that the insurance policy involved in this case, by its terms, is one of indemnity and not of public liability. In the case of Cuellar v. Moore, an opinion by this court, reported in 55 S.W.(2d) 244, it is definitely settled that under insurance policies such as we have in this case the insurance company cannot be joined with the alleged negligent party in a suit to establish the amount of damages. Ample authority is therein cited for this holding.

Appellees in their reply to appellants' second proposition raise the question that the alleged negligent party, being a common carrier for hire and by the provisions of article 911b, § 13, Vernon's Ann. Civ. St., is required to carry casualty insurance before it can secure a certificate of public convenience and necessity, and that such policy is required to be filed with the Railroad Commission of Texas; and allege that these are sufficient facts to take this case out of the general rule announced in the case of Cuellar v. Moore.

Section 13, art. 911b, provides, among other things: "That the obligor therein [meaning insurance policy] will pay to the extent of the face amount of such insurance policies and bonds all judgments * * * that such judgments will be paid by the obligor in said bonds and insurance policies irrespective of the solvency or insolvency of the motor carrier. * * * Provided further that in the event the insured shall abandon his...