Karotkin Furniture Co. v. Decker

• Decision Date: 09 June 1932
• Docket Number: No. 1559-5894.,1559-5894.
• Citation: 50 S.W.2d 795
• Parties: KAROTKIN FURNITURE CO. v. DECKER.
• Court: Texas Supreme Court

Page 795

50 S.W.2d 795

KAROTKIN FURNITURE CO. v. DECKER.

No. 1559-5894.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Billy Decker against the Karotkin Furniture Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals in 32 S.W.(2d) 703, and defendant brings error.

Affirmed.

Thomas, Frank & Grady and L. M. Patterson, all of Dallas, for plaintiff in error.

Eskridge & Groce, of San Antonio, for defendant in error.

CRITZ, J.

We designate the parties to this suit in the order in which they appeared in the district court; Billy Decker, as plaintiff, and Karotkin Furniture Company, a private corporation, as defendant.

The plaintiff, a minor, by and through his next friend, sued the defendant in the district court of Bexar county, Tex., for damages for personal injuries arising out of his having been run over by a truck owned and operated by the defendant. The case was submitted to a jury on special issues, and in response thereto the jury found negligence on the part of the truck driver, resulting injuries to the plaintiff, and damages in his favor in the sum of $6,000. Judgment was entered accordingly. Defendant appealed to the Court of Civil Appeals at San Antonio, which court affirmed the judgment of the district court. 32 S.W.(2d) 703. The defendant brings error.

The defendant's first assignment of error is as follows:

"The Court erred in overruling the appellant's eighteenth assignment of error, which is as follows:

"`The Court erred in instructing the jury and failing to define negligence, ordinary care, contributory negligence, burden of proof, preponderance of the evidence and proximate cause, because each of said definitions are necessary for the jury to answer the questions that should be submitted to the jury, in an intelligent manner, as set out in defendant's second objection to the Court's main charge!'"

The Court of Civil Appeals overruled the above assignment because it was not properly briefed. The brief as to this issue is certainly subject to the criticism leveled against it by the opinion of the Court of Civil Appeals, and that court did not err in refusing to consider it.

A casual reading of this assignment discloses that it is multifarious, in that it attempts to present six alleged errors in one assignment. Of course, this violates the rule requiring each error relied upon to be separately and distinctly specified and that no assignments shall express more than one specification of error. Tex. Jur. vol. 4, p. 855 et seq. We are aware of the fact that multifarious assignments have frequently been considered by the appellate courts when the ends of justice required. Tex. Jur. vol. 4, p. 857. Should the Court of Civil Appeals see fit to consider such assignment, we would be very slow to say that they had abused their discretion.

In spite of the fact that this assignment is improperly briefed and multifarious, we have gone to the trouble to examine the charge to ascertain if it is subject to any of the objections included therein. The examination discloses that the charge does define proximate cause and burden of proof. The charge does not give a direct definition of negligence and ordinary care, but the question submitting such issue is so constructed as to constitute a definition within itself. The record shows conclusively that this plaintiff, at the time of his injury, was a child under three years of age, a mere baby. Of course, he could not be guilty of contributory negligence, and therefore there was no issue of contributory negligence in the case. No person is here attempting to recover damages except the injured child himself. The term "burden of proof" is not defined, but it needed no definition. It is a term of such common use that it cannot be supposed, under the facts of this record, that the jury did not understand it. Stine Oil & Gas Co. v. English (Tex. Civ. App.) 185 S. W. 1009.

The defendant contends that the charge defining "proximate cause" is erroneous. The charge is as follows: "`You are instructed that the term, "proximate cause" as that term is used in this charge, means the moving and efficient cause, without which the injuries in question would not have happened; an act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question, and one that ought to have been foreseen by a...