Kainer v. Walker, A-9605

CourtSupreme Court of Texas
Citation377 S.W.2d 613
Docket NumberNo. A-9605,A-9605
PartiesMilton KAINER et al., Petitioners, v. James W. WALKER, Respondent.
Decision Date12 February 1964

Bryan & Patton and Julietta Jarvis, Houston, for petitioners.

Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for respondent.

WALKER, Justice.

This suit was brought by James W. Walker, respondent, to recover for damages alleged to have been sustained in an intersectional collision between the automobile he was driving and a truck owned by Milton Kainer and driven by the latter's employee, Robert Miles. Kainer and Miles were defendants in the trial court and are petitioners here. The trial court rendered judgment for respondent on the jury verdict, and the Court of Civil Appeals affirmed. 366 S.W.2d 249.

Negligence on the part of Miles was alleged by respondent only in general terms, and petitioners did not except to the pleading. Although the evidence will support findings that Miles was negligent in a number of different respects, no specific primary negligence issues were submitted to the jury. The judgment in respondent's favor is based on the jury's findings in response to Special Issues Nos. 1 and 2: (1) that Miles 'failed to exercise that degree of care which would have been exercised by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances,' and (2) that such failure was a proximate cause of the collision. Petitioners objected to each of these issues on the ground that the same were multifarious and duplicitous and an improper blanket submission of the issues of negligence claimed by respondent.

It has often been held that both primary and contributory negligence should be submitted to the jury by means of special issues relating to specific acts or omissions raised by the pleadings and evidence. See Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Blythe County Line Ind. Sch. Dist. v. Garrett, Tex.Civ.App. 232 S.W.2d 248 (no writ). These and a number of other cases cited by the parties are not necessarily controlling here, because in each of them the pleading was specific or a general plea was attacked by special exception or specific issues were submitted.

In Texas & N. O. R. Co. v. Hayes, 156 Tex. 148, 293 S.W.2d 484, no exception was taken to a general plea of contributory negligence. A specific contributory negligence issue was submitted without objection, and a general submission requested by the defendant was refused. It was held that the defendant was not entitled to a general submission because the only issue of contributory negligence raised by the evidence had been submitted specially. Respondent says that the reasoning of the Court in that case leads to the further conclusion that the defendant would have been entitled to a general submission if more than one specific issue had been raised by the evidence. He argues and the Court of Civil Appeals held that if either party pleads primary or contributory negligence generally and the pleading is not attacked by special exception, such party has the right to have the case submitted to the jury in that form. We do not agree.

There is another case in which contributory negligence was alleged in general terms and the plaintiff did not except to the pleading. Contributory negligence was then submitted generally; the defendant made no objection to the general submission but did request a cluster of specific issues dealing with the alleged failure of the plaintiff to sound the horn of his automobile. It was held that the trial court erred in refusing to give the requested specific issues. Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877. See also Southern Iron & Machine Co. v. Portugal, Tex.Civ.App., 53 S.W.2d 685.

When a person who has alleged negligence in only general terms may thus demand a specific submission, we are at a loss to understand why the adverse party should have any different treatment. Under the provisions of Rule 277, Texas Rules of Civil Procedure, either party has the right to insist that specific issues raised by the pleadings and evidence be submitted distinctly and separately. It is well settled, moreover, that a general plea of either primary or contributory negligence, when not excepted to, is sufficient to warrant submission of the issue either generally or in such groups of specific issues as may by raised by the evidence. See Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; Texas & N. O. R. Co. v. Hayes, supra; Agnew v. Coleman County Electric Cooperative, supra; Coleman v. Texas & Pac. Ry. Co., Tex.Civ.App., 241 S.W.2d 308 (wr. ref.). This refers to the sufficiency of the pleading as such to support either form of submission, and does not mean that anyone who goes to trial on an unattacked general plea of negligence is entitled to have the issues submitted generally or specially as he may choose.

The usual reason for excepting to general pleadings is to obtain further information about and narrow the claims or defenses asserted by the adverse party. One who does not need such information to prepare for trial will probably permit the pleading to go unchallenged, and in our opinion there is no sound reason for saying that he thereby loses the right to have each controverted and ultimate issue of fact considered and determined separately by the jury. It would be rather strange to require a party to take, the court to pass upon, and the opposite party to meet a special exception which serves no purpose whatsoever except to lay a predicate for a procedural right that can and should be asserted later in the trial. We hold that petitioners were entitled to a specific submission of the negligence issues raised by the evidence, and that they could reach the matter by making a proper objection to Special Issues Nos. 1 and 2.

Respondent contends that the objections made by petitioners were too general. He recognizes that ultimately it would be necessary for him to prepare and tender the issues in proper form, but says that where the pleadings are general the objecting party must, as part of his objection to a global submission, point out the issues raised by the evidence. It seems to us that here again an undue burden would be placed on anyone in petitioners' position by the generality of an adversary's pleading. The objections made by petitioners were sufficient to direct the attention of the trial court to their contention that Special Issues Nos. 1 and 2 constituted an improper global submission of a number of specific issues which respondent claimed were raised by the evidence. That is all they were required to do. Rule 274, Texas Rules of Civil Procedure. To the extent that Owens v. L. J. Miles Construction Co., Tex.Civ.App., 336 S.W.2d 189 (no writ), and Texas & Pac. Ry. Co. v. Porter, Tex.Civ.App., 360 S.W.2d 568 (wr. ref. n. r. e.), are inconsistent with the conclusions here expressed, such decisions are regarded as unsound and will not be followed.

There is no merit in petitioners' contention that the verdict will not support a judgment in respondent's favor without a finding of some act or omission to which the general finding of negligence might be related. The erroneous global submission of the primary negligence issues simply requires that the cause be remanded for a new trial. Point No. 7 in the application for writ of error presents questions that are not likely to arise again. Point No. 9 seemingly raises a 'no evidence' question, but when considered in the light of the argument thereunder is really a problem of excessiveness and not within our...

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43 cases
  • Barclay v. C. C. Pitts Sand & Gravel Co., A-10199
    • United States
    • Supreme Court of Texas
    • February 17, 1965
    ...Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613. Proper control issues have been submitted in many automobile negligence cases, but no decision has been found where the issue was attacke......
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    ...those cases we now overrule and disapprove are: Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644 (Tex.1965); Kainer v. Walker, 377 S.W.2d 613 (Tex.1964); Agnew v. Coleman Elec. Coop., Inc., 153 Tex. 587, 272 S.W.2d 877 (1954); Roosth & Genecov Prod. Co., Inc. v. White, 152 Tex. 619,......
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    ...existing at the time of the occurrence giving rise to the litigation and the conditions created by the experiment. Kainer v. Walker, 377 S.W.2d 613 (Tex.1964), overruled on other grounds, Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981); Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.......
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