Phillips Petroleum Co. v. Booles

• Decision Date: 28 October 1925
• Docket Number: (No. 535-4228.)
• Citation: 276 S.W. 667
• Parties: PHILLIPS PETROLEUM CO. v. BOOLES et ux.
• Court: Texas Supreme Court

276 S.W. 667

PHILLIPS PETROLEUM CO. v. BOOLES et ux.

(No. 535-4228.)

Commission of Appeals of Texas, Section B.

October 28, 1925.

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

Action by J. P. Booles and wife against the Phillips Petroleum Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (261 S. W. 439), and defendant brings error. Affirmed.

Hawkins, Hawkins & David, of Breckenridge, for plaintiff in error.

Levy & Evans, of Fort Worth, and Jno. F. Evans, Jr., of Breckenridge, for defendants in error.

SPEER, J.

By act of 1913, c. 136, article 1612 of the Revised Civil Statutes was amended (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612) to read as follows:

"The appellant or plaintiff in error shall in all cases file with the clerk of the court be-law all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk's office; provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of."

After the amendment the Courts of Civil Appeals throughout the state most generally adopted a literal construction of the amendment, treating the motion for a new trial as the assignment of errors, and refusing to reverse for any error (not fundamental) that had not been presented to the trial court in the motion for new trial. The Supreme Court has several times construed this article since the amendment, but, notwithstanding these decisions, there yet appears to be some confusion in the decisions of the Courts of Civil Appeals, and the writ of error has been granted in this case to review that apparent conflict of decision and to set at rest the question whether or not an appellant having filed a motion for new trial in the trial court is restricted on appeal to the errors specified in such motion.

In this case the Court of Civil Appeals for the Fourth District refused to consider plaintiff in error's assignments of error, as appellant in that court, and affirmed the judgment of the trial court upon the ground that the assignments presented matters not complained of in the motion for new trial, but had been filed in the trial court as "additional assignments" of error to those embodied in the motion for new trial. Upon rehearing, however, the court modified its original opinion to the extent of holding that, "when a cause is tried by jury, whether upon a general charge or special issues, all questions relating to the sufficiency of the evidence to support the verdict must be raised in a motion for new trial in the court below so as to give that court an opportunity to correct any error thus disclosed." This undoubtedly announces a correct rule of practice, and upon this ground we are entirely justified in affirming the judgment of that court, since, as we interpret the assignments, they do present an attack upon the verdict for insufficiency of evidence to support the findings.

However, in view of the existing conflict of decision upon a question of such vital importance in the practice, we think it not inappropriate further to discuss the rule with respect to assignments of error under the present amendment.

In Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S. W. 593, the Supreme Court, through Chief Justice Phillips, reviewed the question quite thoroughly, and announced the conclusion that the apparently mandatory language of the amendment was in truth directory in the sense that it was intended to simplify and lessen both the labor and expense of an appeal by permitting the appellant to treat his motion for new trial, when filed, as an assignment of errors so as to avoid the necessity for repeating by filing formal assignments thereafter, and declined the strict interpretation, saying:

"It would be highly technical to confine an appellant for his assignments of error to the exact language of his motion for a new trial. This, in our view, is not what the Legislature had in mind. It intended, we think, to permit him to use his motion for that purpose if he desired, but not to deny him the right of filing formal assignments if he preferred to adopt that course."

In Barkley v. Gibbs, 227 S. W. 1099, the Commission of Appeals, Section B, held that an appellant may file assignments of error independent of, and subsequent to, the motion for a new trial, where those assignments identify and are in consonance with the errors raised in the motion. That holding — fitting the facts of that case — demanded a reversal of the judgment of the Court of Civil Appeals, but the Supreme Court, in adopting the judgment recommended, used this significant language:

"We have expressly ruled in Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S. W. 593, that under article 1612 as amended by the act of 1913, an appellant is entitled to have considered assignments of error filed independently of these specified in his motion for a new trial. He may adopt the assignments in his motion for a new trial or not, as he chooses."

Harlan v. Acme, etc., Co., 231 S. W. 348, also by the same section of the Commission of Appeals, decides that it is not necessary for the assignments of error filed independently of the motion for new trial to be true copies of paragraphs of the motion. The Supreme Court expressly approved the holding of the Commission.

The Commission of Appeals, Section A, in Temple, etc., Co. v. Lindholm, 231 S. W. 321, likewise held that —

"It is settled that an appellant may adopt either the assignments of error set out in his motion, or the assignments, filed independently of those in the motion. Barkley et...