Grieger v. Vega

• Decision Date: 14 July 1954
• Docket Number: No. A-4577,A-4577
• Citation: 271 S.W.2d 85,153 Tex. 498
• Parties: GRIEGER v. VEGA.
• Court: Texas Supreme Court

Page 85

271 S.W.2d 85

153 Tex. 498

GRIEGER v. VEGA.

No. A-4577.

Supreme Court of Texas.

July 14, 1954.

Rehearing Denied Oct. 13, 1954.

Wofford, Fullerton & Barkley, Taylor, for petitioner.

Carlos C. Cadena, San Antonio, David Longoria, Austin, for respondent.

HICKMAN, Chief Justice.

This is a suit by respondent, Matilda Vega, against petitioner, Fred Grieger, for damages for the alleged wrongful killing of her son, Arthur Vega. Her petition alleged that petitioner 'willfully and maliciously killed Arthur Vega by shooting him with a gun.' The case was submitted to a jury on two special issues as follows:

'Special Issue No. 1: Do you find from a preponderance of the evidence that the action of Fred Grieger in shooting and killing the deceased, Arthur Vega, was wrongful?

'Answer 'Yes' or 'No.'

'If you have answered Special Issue No. 1 'Yes,' and in that event only, you will answer the following special issue:

'Special Issue No. 2: What amount of money, if any, do you find from a preponderance of the evidence would, if paid now, reasonably compensate the plaintiff, Matilda Vega, for the loss of pecuniary benefits, if any, sustained by her as a result of the death of Arthur Vega?

'Answer by stating the amount of dollars, if any, and cents, if any.

'Answer: $_____.'

The first special issue was answered 'No,' and in accordance with the court's instruction the second issue was not answered. Upon the verdict, judgment was rendered that respondent take nothing. The case was reversed and remanded by the Court of Civil Appeals. 264 S.W.2d 498.

The charge defined the term 'wrongful' as used in Special Issue No. 1 as follows:

'By the term 'wrongful,' as used in Special Issue No. 1, means the use by defendant of a greater degree of force than was reasonable and necessary under the circumstances then existing and that the defendant was not at the time acting in his own self-defense, as below explained. In this connection you are charged that if at the time of the killing the deceased or his brother by his or their acts or conduct reasonably induced the defendant to believe that deceased or his brother was about to attack him with a deadly weapon which would probably cause defendant's death or some serious bodily injury, or if by the acts of the deceased or his brother, it reasonably appeared to defendant at the time, viewed from his standpoint alone, that deceased or his brother was then about to attack him with a deadly weapon which would probably cause defendant's death or some serious bodily injury, and if same was reasonably calculated to create in the mind of defendant, and did create in his mind, a reasonable expectation or fear of death or some serious bodily injury, and that defendant then and there, moved and actuated by such reasonable expectation or fear of death or serious bodily injury, shot and killed deceased, Arthur Vega, then under such circumstances the killing would be in his lawful selfdefense and would not be 'wrongful.' It is not essential to the right of self-defense that real danger should exist. If from defendant's standpoint, and his standpoint alone, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger were real, and if he shot and killed the deceased under such circumstances, the killing would not be 'wrongful."

The point upon which the case was reversed by the Court of Civil Appeals was that the trial court erred in submitting the damage issue-Special Issue No. 2-conditionally. The rule is well grounded in our practice that it is error to submit a special issue conditionally when the effect of such submission is to inform the jury as to the judgment which will be rendered as a result of the verdict. In order for a conditional submission to be erroneous it must 'inform' the jury of that which it would not know but for such conditional submission. The spirit of our practice of submitting cases on special issues would be violated if jurors were informed either by the court or by counsel of the effect of their answers, but where the effect is so obvious that any juror with ordinary intelligence would know its effect, neither the letter nor the spirit of the rule is violated by a charge which assumes such knowledge. The sole question for decision was whether or not petitioner wrongfully killed respondent's son. No juror would have been of the opinion that petitioner was liable in damages to respondent if his act was not wrongful. Any juror of ordinary intelligence would have known the legal effect of the answer to Special Issue No. 1. The conditional submission of Special Issue No. 2 did not inform the jury of its legal effect, and, therefore, should not cause a reversal of the trial court's judgment. McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759; Lloyds Casualty Company of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, error refused; Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097, writ dismissed; Burrow v. Davis, Tex.Civ.App., 226 S.W.2d 199, ref. n. r. e.; Dallas Railway & Terminal Co. v. Baughman, Tex.Civ.App., 243 S.W.2d 233.

Respondent places reliance upon Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482. That case is distinguishable from the instant one. There the charge of the court informed the jury of the effect of all its answers to issues of both primary negligence and contributory negligence. The opinion recognized that it is not always reversible error to instruct a jury to the effect that affirmative or negative answers to certain questions would relieve them of the duty of answering certain other questions, but held that it was reversible error when the jury was informed of the result of all of its answers in a case wherein there were issues of both primary negligence and contributory negligence. Continental Oil Co. v. Barnes, 97 S.W.2d 494, error refused, is also relied upon by respondent in support of the judgment of the Court of Civil Appeals. That case is likewise clearly distinguishable from the instant one.

The position of respondent here is: 'Thou shalt not submit the damage issue conditionally.' We cannot unqualifiedly accept that as a rule of decision. It would be the better practice to submit the damage issue unconditionally, but when, in a case like the instant one, the conditional submission conveys no information to the jury, the case should not be reversed on that account.

Having determined that the Court of Civil Appeals erred in sustaining the point of error made the ground of its judgment reversing the case, it becomes our duty to consider the briefs filed by respondent in that court, for the purpose of determining whether its judgment may be affirmed upon some other ground. The first point brought forward to the Court of Civil Appeals was that Special Issue No. 1 was multifarious, since in order to answer said issue the jury was required to determine by a single answer, both whether petitioner at the time he killed respondent's son was acting in self-defense and whether petitioner used more force than was necessary under the circumstances, and by other points complaint was made of the refusal of the trial court to submit certain special issues requested by respondent. One such issue inquired whether or not at the time Arthur Vega was killed he was making an assault upon petitioner; another whether the assault was of such a nature as to produce in petitioner a reasonable expectation of death or serious bodily injury; another whether petitioner used more force than was necessary in his self-defense; and another whether petitioner had at his disposal other reasonable means of repelling the attack then being made upon him, if any. These points together present the contention that self-defense should not be submitted in one issue, but should be broken down into its several elements, and each separately submitted. We cannot sustain that contention. The charge is in practically the identical language of the charge approved in Brrow v. Barclay, Tex.Civ.App., 269 S.W. 235, writ refused. In McMurrey Corporation v. Yawn, Tex.Civ.App., 143 S.W.2d 664, 665, writ refused, a case like the instant one, the court charged the jury as follows: "You are charged that by the term 'wrongful' as used in Special Issue No. 1, means the use of a greater degree of force than was reasonable and necessary under the circumstances then existing." The case was reversed by the Court of Civil Appeals because there was not included in the definition of 'wrongful' the instruction that it was not essential to the right of self-defense that a real danger should exist-that a party has the right to defend against apparent danger to the same extent as to real danger. The opinion cited as authority for the holding Barrow v. Barclay, supra. Considering the two cases together, the conclusion is that all elements of the right of self-defense raised by the evidence should be included in one instruction and submitted in one issue inquiring whether the killing was wrongful.

The method employed by the trial court of grouping several elements of an ultimate issue into one special issue is to be commended. The ultimate issue in this case was whether or not the killing was wrongful. The instruction was placed in the charge for the purpose of enabling the jury to answer that particular question, and it was not error for the court to decline to break down that instruction and submit the elements of self-defense in the special issues requested. City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 14 A.L.R.2d 61; Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978; Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090. The Court of Civil Appeals construed our recent opinion in Roosth & Genecov...