Carter v. Haynes

• Decision Date: 07 January 1925
• Docket Number: (No. 6825.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 269 S.W. 216
• Parties: CARTER v. HAYNES.
• Court: Texas Court of Appeals

269 S.W. 216

CARTER v. HAYNES.

(No. 6825.)^*

Court of Civil Appeals of Texas. Austin.

January 7, 1925.

Rehearing Denied February 18, 1925.

Error from District Court, Comanche County; J. R. McClellan, Judge.

Suit by Wilkie Carter against J. H. Haynes. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions.

Shepherd & Lankford, of Cisco, for plaintiff in error.

Grisham Bros., of Eastland, for defendant in error.

BLAIR, J.

Wilkie Carter, plaintiff in error, hereinafter designated appellant, sued J. H. Haynes, defendant in error, hereinafter designated appellee, for $1,000 damages for injury to certain oil well casing on which appellant had a mortgage; the injury was alleged to have been done by appellee while attempting to draw the casing from a well in which it had been run. Appellant's petition alleged facts constituting appellee a trespasser in possession of the casing at the time he injured it.

Appellee, in addition to a formal answer, pleaded certain written contracts for his authority to draw the casing, and that in attempting to draw the casing he did so in a careful and painstaking manner; to which defenses pleaded, appellant filed general and special exceptions, which were overruled by the court.

The cause was tried to a jury on a general charge, over appellant's objection and written requests to submit it on special issues. The jury found for appellee, and the court so rendered judgment, from which this writ of error is perfected.

The trial court erroneously refused the written request of appellant to submit the case to the jury upon special issues of fact. Article 1984a as amended in 1913 (Laws 1913, c. 59 [Vernon's Sayles' Ann. Civ. St. 1914]), reads:

"Art. 1984a. Submission of Special Issues. — In all jury cases the court, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately, and without being intermingled with each other, so that each issue may 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, and the court may submit said cause upon special issues without request of either party, provided that if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse the request to do so, but the action of the court in refusing may be reviewed on proper exception in the appellate court, and this article shall be construed in connection with article 1985 of chapter 14, title 37, Revised Statutes.

"Art. 1985. Special Verdict, Requisites of; Failure to Submit Issue not Reversible Error Unless Request, etc. — The special verdict must find the facts established by the evidence, and not the evidence by which they are established; and it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleading. But the failure to submit any issue shall not be deemed a ground for reversal of the judgment, upon appeal or a writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided, there be evidence to sustain such a finding."

Appellee, before the court read its general charge to the jury, requested in writing that the case be submitted upon special issues. In approving the bill of exception relating to this question, the trial judge gave the following as his reasons for refusing the request:

"No request to submit on special issues until I was dictating my general charge, and when requested by plaintiff he did not have or present to me any written issues he desired submitted, or even suggest what issues he desired submitted, and did not do so until after I had completed and delivered to him my charge."

These qualifications do not explain away the error asserted in the bill of exception. The provisions of article 1984a, supra, are mandatory. Buckholts State Bank v. Graf (Tex. Civ. App.) 200 S. W. 858. The statutes make only one exception which excuses the trial judge in refusing the written request to submit the case upon special issues, and that is, where the case cannot be so determined, the trial judge in such case exercises his discretion, subject to review, as to whether the case can be so determined. Dorsey v. Codgell (Tex. Civ. App.) 210 S. W. 303. No contention is made here that the issues of fact sought to be determined could not have been properly submitted upon special issues, nor does the trial judge base his qualifications of the bill of exception upon that ground. In fact, we think it clear that the case could have been more clearly submitted upon special issues than upon the general charge given.

In Jackson v. Martin (Tex. Civ. App.) 218 S. W. 4, it was held reversible error to refuse to submit the case on special issues, on written request therefor before the general charge had been submitted to the jury, although the general charge had been prepared and delivered to counsel for inspection, and although the counsel requesting submission on special issues had made his objections to the general charge so prepared. See, also, Klyce v. Gundlach (Tex. Civ. App.) 193 S. W. 1092.

The question of whether special issues accompanying the written request to submit on special issues are not raised by the evidence, or because they do not incorporate correct issues as a matter of law, is another and different question from the question of whether the court erred in refusing to comply with the mandatory provisions of the above statute and submit the case upon special issues upon written request to do so by one of the parties to the suit. It was held in Shaw v. Garrison (Tex. Civ. App.) 174 S. W. 943, that:

"Submitting special issues of fact raised by the evidence to the jury for their determination, or refusing such submission, is, however, in no sense the giving or refusing to give a special charge, and hence in no respect controlled by the technical and particular provisions of the amendments and their construction referred to. `Such a request is neither a charge given nor a requested charge refused, and it stands upon a very different footing.' G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329; Texarkana & Ft. Smith Ry. Co. v. Casey, 172 S. W. 729. The objection in the one case is to the law as applied by the trial judge arising upon the facts, while in the other case the objection is to the method and manner of directing the jury what facts they shall determine from the evidence."

The provisions of article 1985, supra, which by legislative enactment must be construed with article 1984a, supra, do not relate to the question of whether or not the trial court shall submit the case upon special issues upon written request. Article 1984a provides the procedure by which it is determined whether the case shall be submitted upon a general charge or upon special issues. That being determined, article 1985 provides that:

"It shall be the duty of the court, when it submits a case * * * upon special issues, to submit all the issues made by the pleading."

Neither of these statutes requires the party requesting the submission upon special issues to also submit along with such request the special issues desired, but the last above quotation from article 1985 makes it the duty of the trial court to prepare and present "all the issues made by the pleading." The other provisions of article 1985 all relate to the manner and method of objecting to the giving or refusing of special issues, and to the court's failure to submit some issues raised by the pleadings and evidence. That is, the failure of the court to submit any particular issue along with other issues prepared and presented by it cannot be taken advantage of by the complaining party, unless that party shall have requested the submission of such issue in writing; or, if an issue raised by the pleadings and the evidence is omitted and no request is made in writing by the complaining party for its submission, it will be presumed to have been found by the trial court in favor of the judgment. This same rule was announced by the Supreme Court in the case of Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329, supra, in which case the court was construing a former similar statute upon this subject.

The court also erred in submitting to the jury for its determination the legal effect and meaning of the written contracts pleaded by appellee as his authority or right to draw the casing from the well. It is the duty of a trial judge to interpret, or to inform the jury of the legal effect and meaning of, a written contract pleaded as a defense to the cause of action asserted, and to also instruct or inform them of the legal effect or meaning of any instrument of writing or paper introduced in evidence. Hughes, Instructions to Juries, §§ 156-381; Radford Grocery Co. v. Jamison (Tex. Civ. App.) 221 S. W. 998.

The court also erred in submitting the case to the jury upon the theory of negligence, that is, for instructing the jury that, if they found that appellee drew the casing in a careful and painstaking manner, he would not be liable for injuries thereto; for the reason that the pleadings and the undisputed testimony made appellee, Haynes, a trespasser in possession of the casing at the time of his injury to it, and his liability was therefore absolute, without regard to whether or not he was negligent in drawing the casing, and only the issue of the amount of damages should have been submitted to the jury.

On November 3, 1920, appellant Carter sold one...