Diaz v. Deavers, 1175

• Decision Date: 09 November 1978
• Docket Number: No. 1175,1175
• Citation: 574 S.W.2d 602
• Parties: Noe DIAZ and Alice Diaz, Appellants, v. Frank DEAVERS, Appellee.
• Court: Texas Court of Appeals

Page 602

574 S.W.2d 602

Noe DIAZ and Alice Diaz, Appellants, v. Frank DEAVERS, Appellee.

No. 1175.

Court of Civil Appeals of Texas, Tyler.

Nov. 9, 1978.

Rehearing Denied Dec. 14, 1978.

Jack Ritter, Jr., Austin, for appellants.

Roy Q. Minton, John C. Augustine, Minton, Burton & Fitzgerald, Austin, for appellee.

MOORE, Justice.

This is a suit for damages for personal injuries resulting from an assault. Appellant, Noe Diaz instituted suit against appellee, Frank Deavers, alleging he suffered personal injuries to his left jaw bone and face when Deavers struck him with a wrench. ¹ Appellee answered with a general denial and affirmatively alleged that Diaz provoked the difficulty and that at the time he struck Diaz, he was acting in self- defense. In response to the following numbered special issues the jury found that (1) Deavers committed an assault and battery on Diaz; (2) Diaz's injuries were the direct and natural result of the assault and battery; (3) that in striking Diaz appellee was acting in self-defense; (4) that the conduct of Diaz would provoke a reasonably prudent man to commit an assault and battery; (5) that the damages suffered by his injuries were "nothing"; (6) that Deavers was not actuated by malice in striking Diaz. Pursuant to the verdict the trial court entered a "take nothing" judgment against appellant Noe Diaz. Subsequent to the entry of judgment, appellant filed a motion captioned "MOTION FOR JUDGMENT N.O.V., OR FOR NEW TRIAL." After the motions had been overruled, appellant perfected this appeal.

We affirm.

Under his first point appellant asserts that the trial court erred in refusing to submit his requested instruction explaining the meaning of the term "self-defense" as used in Special Issue No. 3 inquiring as to whether Deavers acted in self-defense. Appellant argues that his instruction was substantially correct while that submitted by the trial court was erroneous. In reply, appellee says that appellant waived any right to complain of the action of the court in refusing the requested instruction because appellant failed to assign such refusal as a point of error in his motion for new trial. We agree with the position taken by appellee. Accordingly, appellants' first point is overruled.

Since this case was tried before January 1, 1978, the question of whether appellant properly preserved his right to complain of the alleged error must be determined on the basis of the Rules of Civil Procedure as they existed before that date. Prior to January 1, 1978, Rule 324, Tex.R.Civ.P., provides as follows:

"In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant . . ."

Prior to January 1, 1978, Rule 374, Tex.R.Civ.P., provided:

"The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. . . ."

Thus appellant was obligated to file a motion for new trial distinctly setting forth each error complained of.

After judgment had been entered, appellants filed a motion captioned "MOTION FOR JUDGMENT N.O.V., OR FOR NEW TRIAL." Both motions appear to have been incorporated in one instrument. The initial paragraph of the instrument reads as follows:

"NOE and ALICE DIAZ, Plaintiffs, respectfully move the Court under Rule 301, T.R.C.P., to disregard the findings of the Jury or (sic) Special Issues Numbers 3, 4, and 5, and to render judgment for Plaintiff NOE DIAZ for $11,627. As reasons for their request Plaintiffs would show:"

(Here follows allegations alleging that the jury's findings to Special Issues 3, 4, and 5 are not supported by any evidence and that such findings are against the overwhelming weight and preponderance of the evidence.)

Then follows the prayer which reads as follows "WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court disregard the jury's answers to these three Special Issues and render judgment for Plaintiff NOE DIAZ for $11,627 and for costs of Court, together with interest at 9% From date of judgment until fully paid, and for execution if not timely paid."

The instrument next recites:

"ALTERNATE PLEA

"In the unlikely event that the Court should decline Plaintiffs' prayer, above, then Plaintiffs move the Court to set aside the verdict returned by the jury and grant a new trial in another County. Plaintiffs say in support of such motion that the jury's verdict is manifest evidence of such bias, prejudice and partiallity (sic) in Bastrop County in favor of TIP DEAVERS and/or against Plaintiffs that a fair and impartial trial can not be obtain (sic) there, and/or that there exists in such County a combination against Plaintiffs instigated by infuential (sic) persons by reason of which Plaintiffs cannot expect a fair and impartial trial.

"WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the jury's verdict be in all things set aside, that a mistrial be declared, that a new trial be granted, and that venue be transferred to Travis County, Texas, or another County convenient to the parties, the witnesses and attorneys, where the Court believes a fair trial may be had.

"SECOND ALTERNATE PLEA

"In the even more unlikely event that the Court should not see fit to grant either form of relief requested above, then Plaintiffs respectfully move the Court to set aside the verdict of the jury and grant a new trial in Bastrop County."

By the wording of the foregoing instrument, it is clear that the portion of the instrument following the term "ALTERNATE PLEA" was intended to constitute the motion for new trial. Contrary to appellant's contention, we do not believe the grounds assigned in the motion for judgment n. o. v. can be considered as grounds for the motion for new trial. Orderly procedure requires that each motion be considered separately.

Nowhere in the motion for new trial do we find any assignment of error complaining of the action of the court in refusing his requested instruction defining the term "self-defense." Since the ground of error was not distinctly set forth in the motion for new trial the complaint was waived. Field v. Sosby, 226 S.W.2d 484, 486 (Tex.Civ.App.-Waco 1950, writ ref'd); Adams v. State Board of Insurance, 319 S.W.2d 750, 757 (Tex.Civ.App.-Houston 1958, writ ref'd n. r. e.).

By the second point appellant contends that the court erred in overruling his motion for judgment notwithstanding the verdict because there is no evidence to support the answer to Special Issue No. 3 in which the jury found that the appellee was acting in self-defense.

Upon this issue of self-defense the trial court instructed the jury as follows:

"Upon the law of self defense you are instructed that when a person is attacked or threatened with an attack by another, and there is created in the mind of the person so attacked a reasonable expectation or fear of death or of serious bodily injury, then the law excuses or justifies such person so attacked in resorting to any means at his command to prevent his assailant from taking his life or inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"You are instructed that if he reasonably believed that danger was imminent, he had the right to strike the first blow and did not have to wait until he was struck; however, he must use only that degree of force which appeared reasonably necessary to repel a threatened violence.

"You are further instructed that serious bodily injury means such injury as gives rise to an apprehension of danger to life, health or limb."

The testimony shows that a short time before the incident in question, Diaz discovered that his registered bull had been injured and was limping in both hind legs. Appellant's farm adjoined the farm owned by Buck Scallorn where appellee, Deavers, had arranged for the pasturing of some of his cattle. Scallorn told appellant that their bull had gotten on his land and that he and Deavers had put the bull back on Diaz's land. After receiving this information, Diaz and his wife drove to Deavers' farm. Upon arriving there Diaz drove to the workshop where Deavers was sharpening a lawn mower blade on a grinder. Diaz entered the workshop unannounced and approached Deavers and said "Are you Deavers"? When Deavers answered in the affirmative, Diaz accused him of injuring his bull, stating: "You are not going to get away with hurting my bull." Deavers testified that from his facial expression, he could tell that Diaz was furious. He testified that he told Diaz that he did not injure his bull and requested Diaz to leave the premises; that he walked back to the grinder and continued to grind the blade; that Diaz followed him and continued to remonstrate with him about injuring his bull. He testified that he again advised him to leave and then left the workshop and...