Hovey v. Sanders

• Decision Date: 13 February 1915
• Docket Number: (No. 722.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 174 S.W. 1025
• Parties: HOVEY et al. v. SANDERS et al.
• Court: Texas Court of Appeals

174 S.W. 1025

HOVEY et al. v. SANDERS et al.

(No. 722.)^†

Court of Civil Appeals of Texas. Amarillo.

February 13, 1915.

Rehearing Denied March 27, 1915.

Error from District Court, Foard County; J. A. Nabers, Judge.

Action by Mrs. V. L. Sanders and others against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and defendants bring error. Affirmed.

H. S. Garrett, of San Angelo, L. W. Allred, of Chillicothe, and D. J. Brookreson, of Benjamin, for plaintiffs in error. Robt. Cole, of Crowell, V. L. Shurtleff, of Hillsboro, and C. L. Black, of Austin, for defendants in error.

HALL, J.

Defendant in error, Mrs. V. L. Sanders, for herself and minor children, Allie, Allen, Hardy, and Annie Sanders, brought suit in the district court of Foard county against S. B. Hovey and M. L. Mertz, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas, as defendants, for damages for the death of her husband, L. O. Sanders, alleged to have been negligently killed on a crossing at Crowell, Tex., on March 22, 1913. There was judgment against defendants for $8,000, apportioned $4,000 to Mrs. Sanders, $1,000 each to each of the children. By the judgment, a one-third interest therein was decreed to V. L. Shurtleff and Robert Cole.

The first assignment complains of the refusal of the court to direct a verdict in favor of the defendants. Defendants in error object to the consideration of this assignment because plaintiffs in error did not reserve any proper or sufficient exception to the general charge of the court submitting the issue of contributory negligence as one of fact to the jury. A peremptory instruction was asked, upon the ground that the undisputed evidence established that the deceased was guilty of contributory negligence, as a matter of law. Appellees insist that, under the express terms of article 2061 (Acts 1913, c. 59), this action of the court should be regarded as approved by the plaintiffs in error. This court has uniformly held that the giving or refusing of a peremptory instruction is fundamental error, which it is the duty of this court to consider, even without an assignment of error, and that the act of the Thirty-Third Legislature (chapter 59), referred to above, has no application. Owens et al. v. Corsicana Petroleum Co., 169 S. W. 192; Henderson & Grant v. Gilbert, 171 S W. 304; Neville v. Miller, 171 S. W. 1109. It has been uniformly held that instructions by the trial court upon issues not raised by the pleadings and evidence constitutes fundamental error, which invokes the consideration of the appellate tribunal, without even an assignment of error; and the Supreme Court, in Oar v. Davis, 105 Tex. 479, 151 S. W. 794, held that a fundamental error, being one "apparent upon the face of the record," is such manifest error as, when removed destroys the foundation of the judgment. If there is not sufficient evidence in behalf of plaintiff to sustain the verdict in his favor, and the court should nevertheless submit the issues to the jury, or if the evidence introduced by the defendant proves no defense whatever, but still it should be submitted to the jury, and judgment is rendered in his favor but against the evidence, we think it is such error as, "when removed, destroys the foundation of the judgment," and upon this theory we feel justified in holding that the action of the court in giving or refusing peremptory instruction is error "apparent upon the face of the record." We therefore overrule the defendant in error's exception to the first assignment of error.

Plaintiffs in error requested the court to submit to the jury 17 questions, upon which the court indorsed:

"Special issue No. A, requested by H. S. Garrett, D. J. Brookerson, L. W. Allred, and H. E. Jackson, attorneys for defendants, in accordance with the statutes in such cases made and provided, and refused, except as to questions numbered 6, 12, 13, 14, 16, and 17, which are given. J. A. Nabers, trial judge."

Plaintiffs in error reserved their bill of exceptions to the refusal of the court to submit all the issues as follows:

"Be it remembered that defendants' requested special issues 1 to 17, indorsed `Special issue No. A,' requested by defendants, in accordance with statutes; that the court indicated and stated that he would give the ones marked O. K. by the court; that he would refuse all others; that defendants duly excepted to the action of the court in refusing said issues."

It is contended by appellees that a reservation of one general exception to the refusal of 11 questions and the notation by the court is insufficient under the present statute: First, because the statement of the court that the issues were requested "in accordance with the statutes in such cases made and provided" is not sufficient to show that the exceptions were reserved before the beginning of the argument and before the charge was read to the jury. We held in Sanger v. First National Bank, 170 S. W. 1087, that it was the duty of the court to present special charges submitted by one party to opposing counsel; and, in the absence of a contrary showing in the record, we would presume that this duty had been performed by the court. We also think that the statement by the court that the issues "were requested in accordance with the statute, and that the defendants duly excepted to the action of the court in refusing said issues," is sufficient to show that the request was made and exceptions reserved before argument and before the charge was read to the jury. In this connection, it is further contended that "a general wholesale exception" to the court's refusal to give several distinct charges or instructions is not entitled to consideration on appeal if any one of the charges requested is erroneous and not entitled to be given. This question has never been decided in this state, so far as we are able to learn. Of the 11 different issues refused by the court and included in the exception, they complain in their brief specifically of the failure to give only three of them; and it is apparent that some of the issues included in the 11 refused by the court are mere repetitions of what the court had already submitted to the jury, and of course were therefore properly refused. It seems that our present practice with reference to excepting to the court's charge and to the refusal of special charges is practically identical with that followed in the federal court and in several of the state courts. In Railway v. Callaghan, 161 U. S. 91, 16 Sup. Ct. 493, 40 L. Ed. 628, the court said:

"Again, it is firmly established that, where propositions submitted to a jury are excepted to en masse, the exception will be overruled, provided that any of the propositions be correct; and, where a general exception is taken to the refusal of a series of instructions, it will not be considered, if any one of the propositions is unsound."

To the same effect, see Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237; Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631; Insurance Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534, 31 L. Ed. 497; Chateaugay Iron Co. v. Blake, 144 U. S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510; Razor v. Razor, 142 Ill. 375, 31 N. E. 678; Baker v. McGinniss, 22 Ind. 257; Fleming v. Latham, 48 Kan. 773, 30 Pac. 166; Omaha v. McGavock, 47 Neb. 319, 66 N. W. 415; Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399, 11 Am. St. Rep. 655; Jones v. Swearingen, 42 S. C. 58, 19 S. E. 947; Goodwin v. Perkins, 39 Vt. 598; Harrison v. Crocker, 39 Wis. 68. We sustain this exception, which disposes of the seventh, eighth, and ninth assignments of error.

Plaintiffs in error requested the court to submit special charge No. C, upon which the court made this memorandum:

"Special charge No. C, requested by the defendants, and, after having been presented to counsel for the plaintiffs, is not given. Defendants except. J. A. Nabers, Judge."

It is not shown that this special charge was requested or presented to the trial judge before the general charge was read to the jury, and before the argument, as required by the present statute, and defendant in error's exceptions are sustained. Insurance Ass'n v. Rhoderick, 164 S. W. 1067; Johnson v. Hoover, 165 S. W. 900; Ford Motor Car Co. v. Freeman, 168 S. W. 80. This exception disposes of the tenth assignment of error.

Upon the bottom of special charges Nos. 1, 2, 5, and 6, the court made the following memorandum:

"Special charge No. ___, requested by defendants, and after having been presented to counsel for the plaintiff, is not given. Defendant excepts."

For the reasons stated, and upon the authorities above quoted, we hold that this is not sufficient to require consideration of the eleventh, twelfth, thirteenth, and fourteenth assignments of error.

Plaintiffs in error filed objections and exceptions, nine in number, to the court's charge. Upon the bottom of these exceptions and objections, the court made this memorandum:

"These exceptions were presented to the court in open session before the jury retired, in the hearing of the attorneys for the plaintiff, and were by me overruled, to which defendants duly then and there excepted in open court."

This notation does not show that the objections and exceptions to the court's general charge were presented before the court's charge was read to the jury and before the argument of counsel. As contended by appellees, we must presume that the argument was not made until after the charge was read to the jury, and that the jury did not retire until the charge was read to them, and the argument was concluded. So far as this bill shows, the objections and exceptions may have been presented to the court during the interval between the argument and the retirement of the jury. We held in Mutual Life Insurance Association v. Rhoderick, supra, that it must affirmatively appear that the...