Ormsby v. Ratcliffe

• Decision Date: 11 January 1928
• Docket Number: (Application No. 15673.)
• Citation: 1 S.W.2d 1084
• Parties: ORMSBY et al. v. RATCLIFFE.
• Court: Texas Supreme Court

Page 1084

1 S.W.2d 1084

ORMSBY et al. v. RATCLIFFE.

(Application No. 15673.)

Supreme Court of Texas.

January 11, 1928.

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

Action by R. E. Ratcliffe against L. D. Ormsby and others. Judgment of dismissal was reversed, and the cause remanded by the Court of Civil Appeals (298 S. W. 930), and defendants apply for writ of error. Writ refused.

Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for plaintiffs in error.

Davis, Synnott & Hatchell, of Dallas, for defendant in error.

PIERSON, J.

This cause is pending in this court on application for writ of error to the honorable Court of Civil Appeals for the Eleventh district.

The honorable Court of Civil Appeals rendered a correct judgment in the case, and the application for writ of error should be refused. However, it is deemed advisable to write upon one issue in the case, inasmuch as there seems to be considerable confusion in the Courts of Civil Appeals, and among some very able lawyers of the state, in relation to a certain rule of practice and the construction of article 2190 of the Revised Statutes of the state.

The following from the last page of the opinion of the Court of Civil Appeals will be a sufficient statement of the case for the purposes of this opinion:

"As the record comes before us, the court submitted to the jury five special issues. The only two of these answered by the jury were at most mere evidentiary facts and not ultimate issues of fact. The other issues submitted were upon a defense pleaded by the defendant, and were, in fact, real issues raised by the pleadings and evidence. On these issues the jury presumably was unable to agree, for no answers were made thereto. The record does not disclose a request on the part of the defendants in error for the submission of other issues to the jury. It is well established by decisions of our courts that, where the court fails to submit a ground of recovery pleaded by plaintiff or a special defense pleaded by the defendant, and there is no request to submit the issue or issues omitted, such issue or issues are thereby waived. Firemen's Insurance Co. v. Havron (Tex. Civ. App.) 277 S. W. 742, and authorities there cited.

"As this case was submitted to the jury, all special defenses were waived, except the defense covered by special issues numbers 3, 4, and 5. The jury being unable to agree on these material issues, there was a mistrial of the case. The trial court did not have the power to substitute its findings, where none were made by the jury, upon an independent ground of defense which the party alleging did not urge.

"When a case is submitted to a jury, and the jury is unable to answer the material issues submitted, it is error for the trial court to dismiss the case on a ground which has been waived by the defendant. The judgment of the trial court will be reversed, and the cause remanded."

Article 2190, Revised Statutes 1925, in part reads as follows:

"Upon appeal or writ of error, an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding."

In this case, and in a number of other cases, it is insisted and has been urged that the provision of the statute wherein it is provided that "an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment, if there is evidence to sustain such finding," includes and applies to all unsubmitted issues in a case, and that such an issue is not waived, and cannot be waived, by a mere failure to request its submission.

It has been held in a number of well-considered cases, and we think correctly so, that the above-quoted provision of the statute does not apply to issues in the case which are independent causes of action in themselves or controlling and independent grounds of recovery, or independent grounds of defense, but that it applies only to such omitted issues as are in accord with, and supplemental or incidental to, and which support, the issues of fact which were submitted and found by the jury, and upon which the judgment is based. It will be observed that the statute provides that such an issue not submitted and not requested is deemed "as found by the court in such manner as to support the judgment," but it does not provide that such omitted issue or finding shall in itself form the basis for the judgment as an independent ground of recovery, but only in support of the judgment properly found and based on a recoverable ground. The language used clearly implies that such unsubmitted and unrequested issues could not form an independent and original basis for the judgment, but only shall be found in such manner as to support the judgment. That this is the proper construction and meaning of article 2190 is made clear also by the provisions of articles 2185, 2186, and the first part of article 2190 quoted above.

Article 2185 provides:

"The charge shall be in writing, signed by the judge, filed with the clerk, and shall be a part of the record of the cause. It shall be prepared after the evidence has been concluded and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine and 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...