Electric Express & Baggage Co. v. Ablon

• Decision Date: 11 February 1920
• Docket Number: (No. 3259.)
• Citation: 218 S.W. 1030
• Parties: ELECTRIC EXPRESS & BAGGAGE CO. v. ABLON.
• Court: Texas Supreme Court

Page 1030

218 S.W. 1030

ELECTRIC EXPRESS & BAGGAGE CO. v. ABLON.

(No. 3259.)

Supreme Court of Texas.

February 11, 1920.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Morris Ablon, by next friend, against the Electric Express & Baggage Company. Judgment for defendant, and plaintiff appealed to the Court of Civil Appeals, where the judgment was reversed, and the case remanded (206 S. W. 717), and the defendant brings error. Judgment of the Court of Civil Appeals affirmed.

Harry P. Lawther, of Dallas, for plaintiff in error.

Etheridge, McCormick & Bromberg, of Dallas, for defendant in error.

HAWKINS, J.

The writ of error was granted by us upon the ground of conflict between the decision of the Court of Civil Appeals for the Fifth District in this case, 206 S. W. 717, and the earlier decision of the Court of Civil Appeals for the Second District in Pantaze v. Farmer, 205 S. W. 521. R. S. (Vernon's Sayles') art. 1521, subd. 2.

An answer which does not reserve the right of oral argument in this court having been filed, under our rule 5 (159 S. W. x) we proceed, without unnecessary delay, to decide the case.

It involves the construction of several articles of our Revised Statutes as amended by the Practice Act of 1913, c. 59, p. 113 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 1954, 1970, 1971, 1973, 1974, 1984a, and 2061), and a related statutory provision.

The action is upon a plea for damages for personal injuries to Morris Ablon, alleged to have resulted from negligence of a driver in the employ of the Express Company. A defensive plea of the Express Company alleged contributory negligence on the part of the injured plaintiff. The cause went to the jury on "special issues," and thereupon the jury made findings supporting each of said pleas. In the trial court no statutory "objection" to the submission to the jury of the special issue on contributory negligence was made. The jury having found against plaintiff on that issue, the trial court rendered judgment in favor of the defendant Express Company. Subsequently, in his motion for a new trial, plaintiff complained, for the first time, upon the ground that the evidence was "insufficient" to support the finding of the jury on the issue of contributory negligence. Said motion was overruled and plaintiff appealed. Assignments of error carrying said contention of plaintiff, as appellant, were considered and sustained by the Court of Civil Appeals, which reversed the judgment of the district court and remanded the cause for a new trial.

The contention of the Express Company is that the above stated contention of Ablon is tantamount to a contention that said special issue ought not to have been submitted to the jury, and that, by failing to object to any submission of that special issue, seasonably —before the charge submitting it was read to the jury—plaintiff acquiesced in the submission of that special issue, and therefore should be treated, thenceforth, as having waived all objections to the sufficiency of the evidence to support the jury's finding on that issue; and that, as a consequence, the Court of Civil Appeals erred in even considering said assignments of error, and in reversing said judgment of the trial court; and that, as an ultimate result, the judgment of the trial court in favor of the Express Company should be affirmed. In support of that contention it cites articles 1970, 1971, 1973, 1974, and 2061, R. S., as amended by said act of 1913.

Do those statutes or any of them, apply when a cause is submitted upon "special issues"? And, if so, does failure to make and present to the trial court, before the charge is read to the jury, statutory "objection" to any submission of a particular special issue—as, for instance, one on contributory negligence—operate as a waiver of the right subsequently to complain, upon grounds of insufficiency of evidence, of the finding of the jury upon that special issue?

Of said five cited articles the last three, 1973, 1974 and 2061, relate, historically and inherently and exclusively, to special instructions, or special charges, requested by a party, and not to the main charge of the court. As a consequence they are not applicable to the present case—said special issue on contributory negligence having been submitted to the jury by the main charge of the court.

Historically and inherently, articles 1970 and 1971, and also article 1972, which was neither repealed nor amended by said act of 1913 and was not cited by plaintiff in error, relate to the main charge of the court, rather than to special charges or instructions. Act May 13, 1846, § 99, 2 Gam. Laws, 1696; Act Feb. 5, 1853, 3 Gam. Laws, p. 1303; R. S. 1879 and R. S. 1895, arts. 1316-1318. In our opinion those three articles, 1970, 1971, and 1972, are applicable to main charges of the court submitting cases to juries on "special issues." They are as follows:

Article 1970: "In all civil cases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court, deliver a written charge to the jury on the law of the case, or submit issues of fact to the jury if said cause is submitted to the jury on special issue of fact at the time, in the manner and subject to the restrictions hereafter provided, provided that failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon repeal (appeal) upon proper exception."

Article 1971: "The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived; before the argument is begun, the judge shall read his charge, and all special charges given by him to the jury in the precise words in which they were written; he shall not charge or comment on the weight of evidence; he shall so frame the charge as to distinctly separate the questions of law from the questions of fact; he shall decide on and instruct the jury as to the law arising on the facts, and shall submit all controverted questions of fact only to the decision of the jury."

Article 1972. "Such charge shall be filed by the clerk and shall constitute a part of the record of the cause, and shall be regarded as excepted to, and subject to revision for errors therein, without the necessity of taking any bill of exceptions thereto."

In the same act of 1913, but preceding the above-quoted articles, is amended article 1984a, wherein it is provided that—

"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," etc.

Amended articles 1970, 1971, and article 1972, are mutually complementary, and when, as in this instance, the main charge of the court submits the cause to the jury upon special issues, all those articles and amended articles 1984a, in their relation to such charge, form material portions of one consistent scheme of procedure, and, therefore, should be construed together.

Amended article 1970 requires that, unless expressly waived by the parties, the judge shall prepare and in open court deliver a written charge to the jury on the law of the case, or submit the cause to the jury "on special issues of fact," and that such submission, whether on the general issue or on special issues, shall be "at the time, in the manner and subject to the restrictions hereafter provided." The expressions concerning "special issues" were not in that article prior to said amendment. Following that article are the provisions of amended article 1971, including the express requirements that "objections" to the charge of the court—

"shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived."

Said amendatory act of 1913 seems to have been intended to put a premium upon efficiency, candor, and diligence, on the part of the litigant or his attorney, in aiding the court properly to submit causes to juries, and to discourage speculation on the actions of juries; and all reasons of public policy impelling such legislative action seem to us of equal force as applied to the two methods of submitting causes. We cannot believe that the Legislature intended that there should be any difference in the practice under the two statutory methods of submitting causes, in so far as concerns either the time and manner of making "objections" to the form of submission of the cause to the jury or the consequences to a litigant for failing to point out to the court, seasonably, any material error into which the court may have fallen in the preparation of its main charge to the jury.

Accordingly, upon full and careful consideration of that issue, as here presented, we have concluded, and here now hold, that said provisions of said amended article 1971 relative to "objections" to the charge of the court to the jury, including the requirement concerning the time of presentation of such objection and also the provision prescribing a penalty for not making and presenting it to the trial court before the charge is read to the jury, are applicable as well when a cause is submitted to the jury "on special issues" as when the cause is submitted to the jury by an ordinary charge presenting the general issue.

The special issues which our statutes contemplate shall be submitted to the jury are only such issues of fact as shall have been "raised by the pleadings and the evidence in the case." Article 1984a, supra. Consequently, if, as contended by Ablon in the Court of Civil Appeals...