Northeast Texas Motor Lines v. Hodges

• Decision Date: 07 January 1942
• Docket Number: No. 2390-7777.,2390-7777.
• Parties: NORTHEAST TEXAS MOTOR LINES, Inc., v. HODGES.
• Court: Texas Supreme Court

Page 487

158 S.W.2d 487

NORTHEAST TEXAS MOTOR LINES, Inc., v. HODGES.

No. 2390-7777.

Commission of Appeals of Texas, Section A.

January 7, 1942.

Rehearing Denied February 11, 1942.

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

Action by J. L. Hodges against Northeast Texas Motor Lines, Inc., for injuries sustained in an automobile collision. Judgment for plaintiff was affirmed by Court of Civil Appeals, 141 S.W.2d 386, and defendant brings error.

Judgment of Court of Civil Appeals affirmed.

R. T. Bailey, of Dallas, for plaintiff in error.

Smith & Dowdy, of McKinney, and John W. West and W. H. Hall, both of Dallas, for defendant in error.

BREWSTER, Commissioner.

This is a suit for damages brought by J. L. Hodges, respondent, against Northeast Texas Motor Lines, Inc., petitioner, for injuries to Mrs. Hodges and damage to his truck alleged to have been sustained in a collision between petitioner's truck and one driven by Hodges. A jury verdict on special issues resulted in a judgment for Hodges which was affirmed by the Court of Civil Appeals, at Dallas. 141 S.W.2d 386. A full statement of the case is there given, hence the same will not be repeated here, except as may be necessary to explain our views.

Petitioner urges five points of error, all relating to the court's charge. The first complains of the form and substance of an issue submitted, the other four complain of the refusal of six requested issues.

Special issue 13, of the court's charge, was as follows: "Do you find from a preponderance of the evidence that the blinding headlights of the automobile that J. L. Hodges met immediately prior to the collision in question was a new and independent cause of the collision in question?" Petitioner contends that this issue placed the burden of proof on it rather than on Hodges. We have concluded that we are not called upon to decide whether there was error in this regard. The record reflects that "before the court's charge has been read to the jury" petitioner presented to the court twenty-nine requested special issues. The twenty-seventh of these was in the exact language of the aforesaid special issue No. 13, which circumstance is explained by the trial court's order noted on requested special issue No. 27, as follows: "The foregoing Special Requested Issue of the defendant was presented to the court and counsel for the plaintiff before the court's charge had been read to the jury, and the same was by the court given as special issue No. 13, to which action of the court the defendant excepted."

Next following said requested special issue No. 27 and the court's above-quoted notation thereon was "Defendant's Requested Special Issue No. 28", which was as follows: "Do you find from a preponderance of the evidence that the blinding headlights of the automobile that J. L. Hodges met immediately prior to the collision in question was not (italics ours) a new and independent cause of the collision in question?" Then followed the court's notation of refusal and exception by petitioner.

The only difference, therefore, between the two issues so requested by petitioner is that the word not appears in No. 28, which was refused, and is absent from No. 27, which was given. Clearly the two issues carry the same ultimate disputed fact and whichever one was given the court could take an affirmative answer thereto and enter the same judgment thereon as he could enter on a negative answer to the other. So, in practical effect, the only error, if any, in the court's submission of requested special issue No. 27 rather than No. 28 was that he thereby placed the burden of proof on the defendant (petitioner) rather than on the plaintiff (Hodges) as he would have done had he given requested special issue No. 28.

However, we believe the situation presents no reversible error for the obvious reason that the error, if any, was made at the invitation and solicitation of the petitioner, the trial judge having certified that he gave requested special issue No. 27 as special issue No. 13 of his charge. It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. The rule, grounded in even justice and dictated by common sense, is that he is estopped. Texas & P. Ry. Co. v. Gibson, Tex.Com.App., 288 S.W. 823; Guaranty State Bank v. Beard, Tex.Civ. App., 18 S.W.2d 679; Braden v. State Tex.Civ.App., 108 S.W.2d 314; Whitehead v. Traders & General Ins. Co., Tex.Civ. App., 128 S.W.2d 429, citing numerous authorities; 3 Tex.Jur., sec. 733, p. 1033.

Nor is petitioner's point saved, as it contends, by the fact that it presented a correct charge in requested issue No. 28. If it presented the two issues together it did so knowing that the court could not, in reason, give both but would have to choose between them. So, having put the court in a dilemma, it cannot now be heard to complain that he chose the issue the more onerous to it. The same principle would apply to a consecutive tender of the two issues since that would...