Loeb v. Texas & N. O. R. Co.

• Decision Date: 21 March 1916
• Docket Number: (No. 33.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 186 S.W. 378
• Parties: LOEB v. TEXAS & N. O. R. Co.
• Court: Texas Court of Appeals

186 S.W. 378

LOEB v. TEXAS & N. O. R. Co.

(No. 33.)^*

Court of Civil Appeals of Texas. Beaumont.

March 21, 1916.

On Motion for Rehearing, May 25, 1916.

Error from District Court, Nacogdoches County; L. D. Guinn, Judge.

Action by Herman Loeb against the Texas & New Orleans Railroad Company. There

was a judgment for defendant, and plaintiff brings error. Affirmed.

John S. Patterson, of Austin, Wm. Thompson, of Dallas, and Blount & Strong and June C. Harris, all of Nacogdoches, for plaintiff in error. Baker, Botts, Parker & Garwood and John T. Garrison, all of Houston, and S. M. King, of Nacogdoches, for defendant in error.

CONLEY, C. J.

This suit was instituted by the plaintiff in error, Herman Loeb, against defendant in error, Texas & New Orleans Railroad Company, to recover $25,135.91 as damages to 614 bales of cotton alleged to have been destroyed on March 29, 1909, on the compress platform in Nacogdoches, Tex., together with interest thereon, through the negligence of the railroad company. The defendant in error entered general and special exceptions to the plaintiff's pleadings, and especially denied all of the acts of negligence alleged, and specially denied that said cotton was burned by the defendant, and pleaded that the plaintiff was guilty of contributory negligence, which was the proximate cause of the injury and damage done to the cotton, in that plaintiff permitted said cotton to be and remain upon the compress platform without any covering; that the shed of the compress was old and worn; that loose lint cotton was permitted to be handled around and about said compress; that he permitted grease to accumulate about the compress; that the compress was not provided with a watchman or with water, etc., all of which caused and contributed to the loss. Plaintiff in error filed a supplemental petition, and specifically denied all allegations of contributory negligence. The case was, by the court, submitted to the jury on special issues, which were answered by the jury in favor of the defendant in error, and, upon motion duly made, judgment was then rendered accordingly. Writ of error was duly perfected from said judgment to this court, and the case is now here for review.

In plaintiff in error's first assignment of error he contends that the court erred in the form and manner in which it submitted to the jury special issue No. 1, and more particularly in the form and manner in which it instructed the jury as to the law by which they should be governed in answering said special issue No. 1, said special issue No. 1 and the law applicable thereto, as submitted by the court, being as follows, to wit:

"Did the defendant, Texas & New Orleans Railroad Company's engine No. 641 set out the fire which burned the plaintiff's cotton in the compress? Answer this question `Yes' or `No.'

"In passing on and answering the above special issue, you are instructed that the burden of proof is on the plaintiff to establish by a preponderance of the evidence that the fire was set out by defendant's engine No. 641, and unless the plaintiff has established said fact to your satisfaction, by a preponderance of the evidence, you will answer said special issue No. 1, `No.'

"Should you answer special issue No. 1, `No,' you need not answer the hereinafter special issues at all, but should you answer special issue No. 1, `Yes,' then you will answer further, and answer the hereinafter special issues."

Defendant in error objects to the consideration of this assignment, for the reason that no bill of exceptions was taken in the lower court by plaintiff in error to said charge. An examination of the record discloses that after the court had prepared its main charge, which contained the objectionable feature complained of, said charge was submitted to counsel for plaintiff in error for inspection and examination, in accordance with article 1971, Vernon's Sayles' Civil Statutes; that counsel thereupon presented elaborate written objections to the said charge, setting up 14 different exceptions thereto, among which is found the objection covered by this assignment. These objections, after being signed by counsel for plaintiff in error, were presented to the court, and, as shown by the record, have noted thereon, at the bottom, the following words:

"Noted: These exceptions were presented to me before the main charge was read to the jury.

                             "L. D. Guinn, Judge Presiding."
                

This is all the information which the record contains, affecting this matter. There is no affirmative judgment overruling the exceptions or objections thus filed, nor is there any notation of an exception to such rulings of the court on the part of counsel for plaintiff in error, nor is there any bill of exception in the record to such ruling. To ascertain how many of the exceptions to the main charge were sustained by the court, or how many were overruled, or whether or not the main charge was modified in any way, in accordance with the exceptions, and the objections thus filed, it will be necessary for us to check the 14 stated exceptions, and to also refer to the special charges requested by the plaintiff in error, and which were by the court refused, and by this process of elimination to eventually arrive at what was actually done by the court with these exceptions. After this task had been accomplished, were we inclined to enter into it, we are still in the dark as to whether the action of the court was approved or disapproved by counsel, except in so far as we can determine that matter by ex parte statements in the briefs and by comparison of the main charge with the special requested instructions refused. On the question of the necessity of reserving bills of exception to the action of the court in giving or refusing charges, it was said in the case of Railway Co. v. Wadsack, 166 S. W. 43:

"The thirty-third Legislature adopted some radical amendments to our practice statutes. Article 1971 of the Revised Civil Statutes was amended so as to read as follows: `The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and to present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.' Acts of 1913, page 113. * * * The act above referred to also contains the following as an amendment to article 2061 of the Revised Civil Statutes of 1911: `The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing article.'

"This article is a part of chapter 19, tit. 37. It evidently refers to the articles which precede it in that chapter, articles 2058, 2059, and 2060. Those articles are as follows:

"`Art. 2058. Whenever in the progress of a cause either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.

"`Art. 2059. No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.

"`Art. 2060. Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions; but it shall be sufficient to refer to the same as it appears in the statement of facts.'

"It was the manifest purpose of the Legislature, in adopting these different amendments, to so reform the practice in our judicial procedure as to reduce the number of reversals on appeal for purely technical errors. Heretofore the ruling of the court in giving and refusing charges was regarded as excepted to in every instance, without any express reservations by bill or otherwise. The effect of the amendment to article 2061 is to place the rulings of the court in giving or refusing charges in the same...