Gulf, T. & W. Ry. Co. v. Culver

• Decision Date: 30 May 1914
• Docket Number: (No. 622.)
• Citation: 168 S.W. 514
• Parties: GULF, T. & W. RY. CO. v. CULVER.
• Court: Texas Court of Appeals

Page 514

168 S.W. 514

GULF, T. & W. RY. CO. v. CULVER.

(No. 622.)

Court of Civil Appeals of Texas. Amarillo.

May 30, 1914.

Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.

Action by G. L. Culver against the Gulf, Texas & Western Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and Joe A. Wheat, of Seymour, for appellant. Browne & Hawkins, of Paducah, and I. O. Newton, of Seymour, for appellee.

HUFF, C. J.

G. L. Culver, appellee, brought suit against the Gulf, Texas & Western Railway Company, appellant, for damages, personal injury, alleged to have been sustained by appellee while in the employment of appellant as a section hand, and while at work on appellant's roadway. He alleges that he fell from a hand car while it was being operated by himself and others which fall was occasioned by the breaking of a handle bar near the socket, and that he fell backward from the hand car, striking the cross-ties on his back and side, alleging serious and permanent injuries to his side and back, both external and internal. The negligence alleged is that appellant failed to furnish appellee with a safe place to work, and with safe appliances with which to labor, and in failing to exercise due and reasonable care to have the handle bar inspected; that the handle bar was made of inferior wood, brittle, and unsuitable for the use for which it was employed. The appellant answered by general denial, contributory negligence, and alleged that, if appellee was injured, his injuries were trivial, and would have been of no consequence if appellee had taken proper care of himself; that he failed to call in a physician or use medical remedies necessary to heal his injuries; that he resumed work the next morning after the fall, etc., and, if there were any such injuries as alleged, they were the result of his own negligence. The trial before a jury resulted in a verdict and judgment for $2,000 in favor of appellee, from which appellant appeals.

Appellant's assignments, from 2 to 19, inclusive, are based upon the court's charge and the failure of the court to give certain special instructions requested by appellant. We have concluded under the law, with reference to exceptions to the charge of the court and the refusal of special instructions, as amended by the Thirty-Third Legislature, p. 113, that we cannot consider the assignments with reference to the charge of the court and the refusal of certain special charges. These assignments will therefore be overruled.

The appellant will be considered to have waived the error assigned in the charge of the court, and the refusal of special charges and the action of the court thereon will be considered approved by appellant.

We find in this record a paper filed by the clerk of the trial court designated, "Defendant's exceptions and objections to the court's charge." There are 10 paragraphs of this instrument, concluding, "Respectfully submitted before the charge was read to the jury, with request that same be corrected," signed by counsel for appellant. We find no bill of exceptions taken to the action of the court in refusing to correct the charge in the particulars pointed out. There is no order or any other method entered of record showing an exception. There is nothing in the record to show that these objections were presented to the court before the charge was read to the jury, except the statement by attorneys for appellant, and the conclusion of the objections, as above set out. At the end of each specially requested charge, we find the following:

"Which special charge No. 2 was by defendant asked to be given by the court in charge to the jury, and was by the court refused, which refusal was excepted to by defendants, and now here tenders his bill of exceptions and asks that it be made a part of the record in this cause. Jo. A. P. Dickson, Judge of the 50th Judicial District of Texas. Refused, Jo. A. P. Dickson, Judge Presiding."

It will be observed that the bill does not show that the charges were presented to the trial judge before the main charge was prepared or read to the jury, nor does it show that it was presented to opposite counsel for their examination. From aught that appears, the charge may have been presented after the court read its charge to the jury. From the record before us, we are in doubt whether the judge approved the bill or refused it. It may be the word "Refused" is intended to indicate that the charge was refused, and not the bill of exceptions. We are left to conjecture, and we are very much in doubt just what is the meaning and purpose of the refusal.

The act of the Thirty-Third Legislature, relating to the time and manner of submitting instructions to the jury, provides (article 1970) that the preparation and delivery of a written charge to the jury on the law of the case shall be delivered by the judge, "in the manner and subject to the restrictions hereinafter provided."

Article 1971: "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."

Article 1973: "Either party may present" written charges which he desires given. The judge may give the charge or a part thereof, or refuse them, and he shall read such part as given "provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination."

Under article 1974, the court shall note which charge is given and which refused, and such charges shall be filed with the clerk and constitute a part of the record of the court, subject to revision for error. This last article (1974) stands as it did before the amendment, with the significant omission of the following words:

"Without the necessity of taking a bill of exception thereto."

Article 1972 does not appear to have been amended, but is left as it was originally, which provides that the court's charge shall be filed as part of the record, and —

"shall be regarded as excepted to and subject to revision for errors therein, without the necessity of taking a bill of exceptions thereto."

The Thirty-Third Legislature amended article 2061, which now reads:

"The ruling of the court in giving, refusing or qualifying of instructions to the jury, shall be regarded as approved unless excepted to as provided for in the foregoing articles."

Article 2061 is part of chapter 19, R. S., relating to bills of exceptions and statement of facts. This article, before its amendment, provided that the ruling of the court in giving and refusing or qualifying instructions "shall be regarded as excepted to in all cases." The articles preceding article 2061 provide when and how bills of exception shall be taken. Article 2058 provides that whenever, in the progress of the cause, either party is dissatisfied with any ruling, opinion, or other action of the court, "he may except and be granted time to embody the same in a bill of exceptions." Article 2059 requires no particular form of words in drafting a bill of exceptions. Article 2061 provides that the bill may refer to the statement of facts in certain instances.

"2062. Where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to preserve an exception thereto."

In the giving of the charge to the jury and the refusing requested instructions, what is the manner and restrictions provided by law? The court prepares the charge and presents it to the parties; they have time to make objections before it is read to the jury. If there are no objections presented, they are considered waived. The question, then, is: How are these objections to be preserved in the record? Clearly the law is not now as it was before the amendment. This court, speaking through Judge Hendricks, held that it is —

"necessary that the record, in a proper manner, shall exhibit the action of the court in refusing the objections to the general charge, when objections are made, and, when refused or overruled by the trial judge, the exceptions of the litigant shall be preserved and incorporated into the record in an appropriate manner." Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Galloway, 165 S. W. 546.

We believe there is no other deduction to be drawn from the amendments above referred to. This interpretation is supported, we think, from an examination of the statutes, keeping in view the old law, the evil and the remedy; and also upon the authority of our Supreme Court, as well as that of courts in other jurisdictions having statutes similar to ours. In the case of Railway v. Cody, 92 Tex. 632, 51 S. W. 329, in passing on a request to submit the case upon special issues, the trial court simply marked the request, "Refused." Our Supreme Court said:

"We are of opinion that a party who desires to review the action of the court in refusing a submission upon special issue should except to the ruling of the court and take a bill of exceptions thereto."

By the law as it now stands, objections must be made to the charge of the court before it is read to the jury, or such exceptions are waived. This court cannot know when the objections were made, whether before or after the charge to the jury, or in fact whether ever brought to the attention of the trial court, unless in some way the record shall show that fact. A mere paper found in the record signed by the attorneys is not evidence of that fact. If there should appear an exception in the answer to the petition...