Holmes v. J. C. Penney Co.

• Decision Date: 29 July 1964
• Docket Number: No. A-10185,A-10185
• Citation: 382 S.W.2d 472
• Parties: Cardell HOLMES and Savannah Holmes, Petitioners, v. J. C. PENNEY COMPANY, Inc., Respondent.
• Court: Texas Supreme Court

Page 472

382 S.W.2d 472

Cardell HOLMES and Savannah Holmes, Petitioners, v. J. C. PENNEY COMPANY, Inc., Respondent.

No. A-10185.

Supreme Court of Texas.

July 29, 1964.

Rehearing Denied Oct. 21, 1964.

Leachman, Gardere, Akin, Porter & DeHay, Ralph Hartman and Edward E. Crowell, Jr., with above firm, Dallas, for petitioners.

Thompson, Knight, Wright & Simmons, Pinkney Grissom, Jerry P. Jones and John A. Gilliam, with above firm, Dallas, for respondent.

CULVER, Justice.

Mrs. Savannah Holmes alleged that in descending a stairway in the J. C. Penney Company's store at McKinney, Texas, by reason of the company's negligence she was caused to fall, thereby sustaining injuries, and brings this suit for damages.

The trial court on a jury verdict rendered judgment in her favor. The Court of Civil Appeals has reversed and remanded. 378 S.W.2d 105. We now reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

As to the matter of negligence on the part of the company, the court submitted three groups of issues all of which were answered in Mrs. Holmes' favor, namely, (1) did the defendant fail to provide a safe place for the plaintiff to walk; (2) did defendant maintain the step with a loose metal strip thereon; (3) did the defendant fail to exercise ordinary care in isntalling and maintaining the metal strip on the edge of the step. Corollary issues of negligence and proximate cause were, of course, included in each group.

The Court of Civil Appeals, in reversing this case, held that the first and third issues were too general and multifarious in that plaintiff had pleaded and offered proof only that the metal strip was loose and caught the heel of plaintiff's shoe which caused her fall. As to that holding we agree. When the plaintiff pleads and relies upon specific acts of negligence, it is not necessary or proper to submit issues as to negligence in general terms. The Court of Civil Appeals goes further and holds that since these issues are duplicitous and submit the same fact issue in different form and shade, they place an undue emphasis on plaintiff's right of recovery, which is so prejudicial to the defendant as to constitute reversible error.

While the question is somewhat nebulous and uncertain and one in respect to which courts may well differ, we are inclined to disagree with the Court of Civil Appeals and to hold that the error in this case is not so harmful as to require a reversal and a new trial. Under our rules appellate courts are not permitted to reverse a judgment and order a new trial unless they be of the opinion that the error of the trial court amounted to such a denial of the rights of the appellant as was reasonably calculated to and probably did cause the rendition of an improper judgment. Rules of Civil Procedure, rules 434, 503. Actually, the issues did not submit various phases or different shades of the same issue but rather embraced the fact inquired about in Issue 2 in both Issues 1 and 3. The evidence before the jury, as given by the plaintiff, was that the heel of her shoe was caught on the strip, and her shoe was pulled off of her foot. The Court of Civil Appeals holds that the findings of the jury are not against the great weight and preponderance of the evidence. We do not stand convinced that, but for the submission of Issues 1 and 3 as framed, the jury would have answered Issue No. 2 in the negative.

The cases cited and relied on by the Court of Civil Appeals do hold that the submission of duplicitous issues raising the same fact question, whether identical in language or merely in similar form, is erroneous. Covington v. Howard, Tex.Civ.App., 347 S.W.2d 802, err. ref. n. r. e.; Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633, 636, err. ref.; Dallas Ry. & Terminal Co. v. Bishop, Tex.Civ.App., 153 S.W.2d 298, 304, no wr. hist.; Ellis v. Lewis, Tex.Civ.App., 142 S.W.2d 294, no wr. hist.; Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280. But in none of these cases is that error alone held to be so harmful as to require reversal.

We do, however, take occasion to reiterate that in submitting a case upon special issues, the court should submit only the controlling issues made by the pleadings and the evidence and is not required to submit various phases or shades of the same issue. Rule 279. Repeatedly the attention of the bench and bar has been called to this correct mode of submission. In Texas & Pacific Railway Company v. Snider, supra, we observed that the issue of the failure on the aprt of the plaintiff to keep a proper lookout was submitted in five different forms. The point was not raised on appeal, but we referred to that in the hope that trial judges would simplify special issue submission as much as possible. Professor Hodges in his 'Special Issue Submission in Texas,' Section 53, p. 133, asserts that:

'The most serious defect in the mode of submission to the jury by special issues in Texas, and the feature which is most often criticized, is the use of too many issues in submitting a particular case. While the fault of breaking up the elements of a ground of recovery or defense into too many component elements is one of the sources of the trouble, a related and more potent cause is the practice of submitting what is substantially a single theory in several different ways, the issues of each worded in slightly different language.'

The late Chief Justice James P. Alexander in a lecture before the Judicial Section, took occasion to comment as follows: ¹

'* * * A practice has grown up, particularly in tort cases, under which the plaintiff ch...