Kiel v. Mahan

• Decision Date: 22 October 1948
• Docket Number: No. 14979.,14979.
• Citation: Kiel v. Mahan, 214 S.W.2d 865 (Tex. App. 1948)
• Parties: KIEL v. MAHAN et ux.
• Court: Texas Court of Appeals

Page 865

214 S.W.2d 865

KIEL v.MAHAN et ux.

No. 14979.

Court of Civil Appeals of Texas. Fort Worth.

October 22, 1948.

Rehearing Denied November 19, 1948.

Appeal from District Court, Wichita County; H. W. Fillmore, Judge.

Action by W. L. Mahan and wife against W. H. Kiel for injuries suffered by plaintiff wife as result of inhaling chlorine gas which escaped in vicinity of a swimming pool operated by defendant.From a judgment for plaintiffs, the defendant appeals.

Affirmed.

E. W. Napier, of Wichita Falls, for appellant.

W. L. Bass, Davenport & Anderson and John Davenport, all of Wichita Falls, for appellees.

McDONALD, Chief Justice.

Plaintiff's suit for damages is based on the claim that his wife suffered personal injuries as a result of inhaling chlorine gas which defendant negligently permitted to escape in the vicinity of a swimming pool operated by defendant.Plaintiff recovered judgment for $8,186.95 on a jury verdict finding defendant guilty of negligence.Defendant has appealed, presenting ten points of error.

The first three points of error complain of the refusal of the court to submit three requested issues to the jury.The first of the refused issues inquired if plaintiff's wife re-entered the swimming pool after getting out of the pool on the south side.The second inquired if she failed to exercise ordinary care in re-entering the pool.The third inquired if such failure to exercise ordinary care was the proximate cause of her injuries.Defendant, the appellant here, argues in his brief that the evidence was sufficient to raise such issues of contributory negligence.

We have carefully examined defendant's second amended answer, on which he went to trial, and find that the only charge of contributory negligence against plaintiff is that contained in the following language, "* * * if she(suffered any injury) it was the result of her own failure to exercise ordinary care for her own protection in that after having had timely warning of the presence of the gas, she deliberately chose to remain in the vicinity of the escaping gas and that she went into the gas affected area and remained there and that such conduct was the sole cause and the proximate cause of her injury, if any, that she had."In another paragraph of his answer defendant charged that plaintiff's wife was adequately warned in time to have avoided injury, but that notwithstanding such warning she persisted in remaining near the drum which contained the chlorine gas.It is not alleged in this paragraph, however, that she was negligent in such respect or that her negligence was the cause of her injury.

Not less than ten issues were submitted to the jury concerning the alleged contributory negligence of plaintiff's wife.They followed closely the language of defendant's answer, and it is plain that they covered every charge of contributory negligence that could have been fashioned from defendant's pleadings.There are no allegations in the answer which can be construed as a charge that plaintiff's wife was guilty of contributory negligence in reentering the pool, as inquired about in the issues which defendant requested and the trial court refused.Therefore, no error is presented on appeal.Rule 94,Texas Rules of Civil Procedure requires affirmative pleading of contributory negligence.Under said rule, and under Rules 277and279, the trial court was required to submit only the issues made by the written pleadings and the evidence.We may properly apply here the language found in the opinion of this court in McCrory's Stores Corporation v. Murphy, Tex.Civ. App., 164 S.W.2d 735, 741, writ refused:

"* * * as pointed out above, under rule No. 94, supra, contributory negligence must now be affirmatively pleaded before it is available to defendant upon the trial.As we view this record the court submitted special issues on all points of contributory negligence pleaded by defendant and under rule No. 279 the general denial pleaded did not put in issue additional issues of contributory negligence not affirmatively pleaded."

To the same effect is the holding in Montgomery Ward & Co. v. Newman, Tex. Civ.App., 181 S.W.2d 613.

The fourth point of error reads: "The court erred in submitting to the jury Special IssueNo. 13 over the defendant's objection."

This issue reads as follows: "Do you find from a preponderance of the evidence that Wanda Mahan did not remain in the chlorine gas affected area after smelling same?"

The objection made in the trial court to this issue reads as follows: "Defendant excepts to Special IssueNo. 13, for the reason that it fails to tell what is meant by the term `did not remain in the chlorine gas affected area,' when for example, did she remain or not remain, and for how long and after what event or circumstance or time does the Court refer to, did she fail or did she remain in the chlorine gas affected area after she first smelled gas, before entering the pool or after some other circumstance.The issue certainly presents no guide for the jury."

It appears from the transcript that after the above objection was made the trial judge changed IssueNo. 13 by adding the words "after smelling same," and that defendant stated that he still insisted on all the objections made to the issue.

The issue as submitted by the court was almost exactly in the language of the defendant's answer, and no error is presented because of the failure of the court to submit the issue in some form other than one which corresponded to defendant's pleadings.We may appropriately quote the following language from the opinion in Safety Casualty Co. v. Teets, Tex. Civ. App., 195 S.W.2d 769, 770, writ refused:

"What we have said applies to each and all of the issues requested by appellant and refused by the court, and it would serve no good purpose to extend this opinion by giving additional reasons why the trial court was justified in refusing such issues other than to say that under Rule 279,Texas Rules of Civil Procedure, the trial court is necessarily governed by the pleadings in formulating the issues to be submitted to a jury and that only ultimate issues raised by the pleading of the parties are to be submitted to the jury.The defendant is not entitled to have special defense issues submitted to the jury when not plead in his answer, even though the evidence might be sufficient to raise such an issue."

Appellant is not in position to complain here of the failure of the court to give any definition or instruction in connection with such issues, because, if for no other reason, appellant did not tender to the court any instruction or definition with the request that it be submitted.Rule 279 provides: "Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment."

Under the fifth point of error complaint is made of the refusal of the trial court to submit the issue of unavoidable accident.To...