Hernandez v. Montgomery Ward & Co.

• Decision Date: 11 May 1983
• Docket Number: No. C-1660,C-1660
• Citation: 652 S.W.2d 923
• Parties: Olivia HERNANDEZ, Petitioner, v. MONTGOMERY WARD & CO., Respondent.
• Court: Texas Supreme Court

Page 923

652 S.W.2d 923

Olivia HERNANDEZ, Petitioner, v. MONTGOMERY WARD & CO., Respondent.

No. C-1660.

Supreme Court of Texas.

May 11, 1983.

Rehearing Denied June 15, 1983.

Flores, Sanchez, Vidaurri, Munoz and Guerra, R.A. Vidaurri, McAllen, for petitioner.

Rankin & Kern, H.H. Rankin, II, McAllen, for respondent.

RAY, Justice.

This is a false imprisonment case instituted by Olivia Hernandez against Montgomery Ward & Co. Based on the jury's verdict, the trial court rendered judgment for Mrs. Hernandez for $85,000. The court of appeals reversed and remanded the cause for trial, holding that the submitted special issue was an impermissible comment on the weight of the evidence. 644 S.W.2d 758. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Mrs. Hernandez was shopping in the Ward store in Pharr, Texas, at which time she made a credit card purchase. Through Some three weeks later, Mrs. Hernandez returned to the store unaware that she had Ms. Longoria's credit card. She gave the card to the same clerk who was originally responsible for the mix-up. The use of Ms. Longoria's card produced the "005" code on the cash register. The clerk then called the security guard who escorted Mrs. Hernandez through the store to Ward's security office. The police were called and Mrs. Hernandez was taken to the police station and charged with the offense of credit card abuse. The charges were eventually dropped when the error was discovered.

some mix-up on the part of one of Ward's employees, Mrs. Hernandez was given the credit card of Gloria Longoria and Gloria Longoria was given Mrs. Hernandez' card. Ms. Longoria noticed the switch in the cards immediately and reported the problem to one of the store clerks. The clerk paged Mrs. Hernandez on the intercom system, but received no response. Ward then entered a "005" code on its computerized cash register. This code indicates that the credit card was reported either lost or stolen.

The case was submitted to the jury on three special issues. Special Issues Nos. 2 and 3 dealt only with the existence of exemplary damages. Special Issue No. 1 read as follows:

SPECIAL ISSUE NO. 1: What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate Olivia Hernandez for damages directly resulting from the false imprisonment, if any, on the occasion in question?

In considering the amount of damages, you may consider mental and bodily suffering, humiliation, shame and fright.

Answer: ___

The definition of false imprisonment accompanying special issue No. 1 was as follows:

"FALSE IMPRISONMENT" is the willful detention of a person without legal justification and without the consent of the person detained, whether such detention be effected by violence or by threats or by any other means which restrain a person from moving from one place to another.

When a person points out another as the perpetrator of a crime and requests or directs police officers to arrest him, the person making the request or the direction is liable for subsequent false imprisonment even though he acted in good faith.

Ward objected to the submission of this special issue on the ground that it was a comment on the weight of the evidence by the court and submitted two separate special issues on liability and damages which were denied. The court of appeals determined the damage issue should not have been submitted because there was no independent finding of liability. The court of appeals further ruled the special issue a comment by the court on the weight of the evidence.

The sole issue presented for review is whether Ward's objection to the submission of Special Issue No. 1 was properly preserved for appellate review since the trial court failed to make an express ruling on the objection. We hold any error in the submission was not properly preserved.

The proper method of complaint when a particular issue included in the charge is defective is by objection. Lyles v. Texas Employers' Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.). The objection must specifically point out the matter complained of and the ground of the objection; otherwise the complaint is waived. Davis v. Campbell, 572 S.W.2d 660 (Tex.1978); Tex.R.Civ.P. 274. Ward's attorney dictated to the court reporter an objection which specifically pointed out the complained of defect and tendered its requested special issues. The trial judge wrote "denied" on Ward's tendered issues; however, he did not rule on the objection.

Rule 272 provides that the judge shall announce his rulings on objections before reading the charge to the jury by endorsing his rulings on the objections if written or by dictating the same to the court reporter in Ward argues that from reading the entire discussion between the attorneys and the trial judge concerning the charge, it is obvious the entire complaint was denied. We disagree. Objections to the charge and requests for submission of issues are not alternatively permissible methods of complaining of the charge. Texas Employers' Insurance Association v. Jones, 393 S.W.2d 305 (Tex.1965). A request for another charge is not a substitute for an objection. Id. When a defectively framed special issue is contained in the court's proposed charge, the tender of a correct issue does not preserve error. See Clarostat Mfg., Inc. v. Alcor Aviation, Inc., 544 S.W.2d 788 (Tex.Civ.App.--San Antonio 1976, writ ref'd n.r.e.).

the presence of counsel if oral. ¹ Tex.R.Civ.P. 272. The record does not reflect any ruling by the trial court on Ward's objection; therefore, the requisites of Rule 272 have not been complied with and there is no basis for appellate review. Lone Star Steel Co. v. Wahl, 636 S.W.2d 217 (Tex.App.--Texarkana 1982, no writ); Texas Employers' Insurance Association v. Clapper, 605 S.W.2d 938 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ); Reliance Insurance Co. v. Dahlstrom Corporation, 568 S.W.2d 733 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.)

By obtaining the judge's endorsement on the requested issues, Ward has preserved any complaint solely as to the court's error, if any, in failing to submit the issues. When Ward objected to the issue, the trial judge responded, "All right." The attorney continued in his explanation of the objection, with the judge answering, "Yes." Ward then proceeded to submit its requested issues which were endorsed as "Denied." Error was held not to be preserved when a judge responded, "I'll let you know at 1:15." Williams v. Meyers, 629 S.W.2d 257 (Tex.App.--Waco 1982, writ dism'd by agr.). The responses of the trial judge in this case did not constitute a ruling in compliance with Rule 272, and therefore, any error the court made in submitting the issue was waived. Accordingly, the court of appeals erred in reversing the judgment of the trial court.

The judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.

ROBERTSON, J., concurred with an opinion.

KILGARLIN, J., dissented with an opinion in which POPE, C.J., and SPEARS, J., joined.

ROBERTSON, Justice, concurring.

I concur in the result of the majority but disagree that the objection to special issue No. 1 was not properly preserved. However, in any event I am of the opinion that the issue as submitted was correct and consistent with Rule 277, Tex.R.Civ.P. in the context of this case.

KILGARLIN, Justice, dissenting.

I respectfully dissent.

I would affirm the court of appeals' holding that Montgomery Ward's objection to special issue number one was preserved. However, I believe that special issue number one, as submitted, was correct and the court of appeals should not have reversed on this ground. Unfortunately, Ms. Hernandez failed to assign this part of the court of appeals' decision as error. Had she The history of Rule 272 of the Texas Rules of Civil Procedure, evidences periodic liberalizing changes. Prior to 1941 the rule provided that objections to the charge must be in writing. If the judge overruled the objections, he would endorse his ruling thereon and officially sign them. In 1941, the rule was amended to allow objections to be dictated to the court reporter in the presence of and with the consent of the court and opposing counsel; that such objections be subsequently transcribed; and, the court's ruling and official signature be endorsed thereon and filed with the clerk. The rule was rewritten, effective January 1, 1976. While the 1976 version still provides that the judge shall announce his rulings upon all objections made to the charge, oral objections may now be made without consent of court. Moreover, the concluding sentence of the new rule states "[i]t shall be presumed, unless otherwise noted in the record, that the party making such objections presented the same at the proper time and excepted to the ruling thereon."

preserved error on this point, I would concur with the result reached by the majority.

In the case at bar, during the preparation of the court's charge, the following colloquy occurred between the court and H.H. Rankin, attorney for Montgomery Ward & Co:

THE COURT: Okay, now, you're first--let me see if I have got a number on it. All right.

MR. RANKIN: All right, now, Your Honor, for the record, I want to object to the submission of Special Issue--where is it? Where is this Charge to the Special Issue Number--

THE COURT: Number One?

MR. RANKIN: Yes.

THE COURT: False Imprisonment Issue.

MR. RANKIN: I want to object to the Special Issue Number One because Special Issue Number One is a comment on the weight of the evidence.

THE COURT: All right.

MR. RANKIN: In that it states that what would reasonably compensate the Plaintiff for damages resulting from false imprisonment, thereby already assuming and advising the jury that false imprisonment had already occurred in the eyes, of the mind of the Court. Therefor...