Placencio v. Allied Indus. Intern., Inc.
| Decision Date | 28 January 1987 |
| Docket Number | No. C-3979,C-3979 |
| Citation | 724 S.W.2d 20 |
| Parties | Prod.Liab.Rep. (CCH) P 11,265 Jose PLACENCIO, Petitioner, v. ALLIED INDUSTRIAL INTERNATIONAL, INC. and Coast Industrial Exchange, Inc., Respondents. |
| Court | Texas Supreme Court |
This is a products liability case. Jose Placencio was injured while operating a grinding wheel. The wheel flew apart and fragmented the right guard of the bench grinder to which the wheel was attached. The guard fragments struck Placencio in the head and face, causing severe injuries. Placencio sued Allied International, Inc. and Coast Industrial Exchange, Inc., distributors of the bench grinder. Based upon jury findings that the bench grinder was defectively marketed and designed, the trial court rendered a joint and several judgment against Allied and Coast. The court of appeals reversed the trial court's judgment and remanded the cause for a new trial, holding that the misuse issues requested by Allied should have been submitted to the jury. 1 685 S.W.2d 364. We reverse the judgment of the court of appeals and affirm that of the trial court.
The misuse issues and definition, as requested by Allied, were as follows:
"Misuse" means a use of the bench grinder that Defendant could not have reasonably foreseen.
Do you find from a preponderance of the evidence that Jose Placencio misused the bench grinder in question?
We the Jury answer ____
If you have answered the foregoing question "yes" and only in that event, answer the following question.
Was such misuse a proximate cause of the occurrence in question?
Answer "yes" or "no."
We the Jury answer ____
Find from a preponderance of the evidence the respective percentage by which each cause contributed to the occurrence in question.
Answer by stating the percentage, if any, opposite each name.
The percentage you find must total 100%.
Plaintiff's misuse _____%
Product defect _____%
Total 100%
_____
Placencio contends that Allied's misuse issues were not submitted to the trial court in substantially correct form and therefore that the court of appeals erred in reversing the trial court's judgment.
This situation is controlled by TEX.R.CIV.P. 279 which provides that the trial court's failure to submit an issue shall not be a ground for reversal of the judgment unless the issue was tendered in substantially correct wording.
[S]ubstantially correct ... does not mean that it must be absolutely correct, nor does it mean one that is merely sufficient to call the matter to the attention of the court will suffice. It means one that in substance and in the main is correct, and that is not affirmatively incorrect.
Modica v. Howard, 161 S.W.2d 1093, 1094 (Tex.Civ.App.--Beaumont 1942, no writ) (emphasis added), citing Chief Justice Alexander's lecture before the judicial section of the State Bar of Texas, July 3, 1941. Issue No. 4, as tendered by Allied, is affirmatively incorrect because it assumes material controverted facts. See Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353 (1947). The words "each cause" assume an affirmative finding of more than one cause; and it is clear that the causes referred to are the plaintiff's misuse and the product's defect. The multiple assumptions are that the product was defective, that it was misused by the plaintiff, and that both of these causes contributed to the occurrence. Because the issue as submitted by Allied assumed the truth of material controverted facts, it would have constituted a comment on the weight of the evidence. See Shihab v. Express-News Corp., 604 S.W.2d 204 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.).
Allied contends that this Court confronted the same question in Alvarez v. Missouri-Kansas-Texas Railroad Co., 683 S.W.2d 375 (Tex.1984) and there held that an implied comment within an issue would not require reversal. However, Alvarez involved a situation in which the trial court had submitted the disputed issue; therefore, we were faced with determining whether an implied comment in a submitted issue was cause for reversal of the trial court's judgment. In this case we are faced with determining whether an implied comment in a tendered issue was cause for the trial court to refuse the issue. We concluded in Alvarez that if there were error in the submission of the disputed issue, it was at most a harmless error and not a proper ground for reversal of the trial court. Thus, we merely applied the general rule that not every trial court error will warrant reversal of its judgment; a trial court's error must be harmful error in order to warrant reversal by an appellate court. TEX.R.APP.P. 81(b), 184.
If in spite of an implied comment, Allied's Issue No. 4 could be deemed "substantially correct," the trial court would have been forced to choose between (1) submitting it and possibly being reversed in the event of appeal by Placencio, or (2) refusing it and being reversed in the event of appeal by Allied. We will not impose such a dilemma upon a trial judge. It was Allied's duty to present the judge with an issue that was not affirmatively incorrect. We hold that the trial court's refusal to submit an affirmatively incorrect issue does not justify reversal; therefore the court of appeals erred in reversing the trial court's judgment.
Allied could have submitted Issue No. 4 in proper form by conditioning it on affirmative answers to prior issues establishing the assumed facts. We approve the State Bar's suggested form of misuse submission in the Texas Pattern Jury Charges. Unlike Allied's issue, the form suggested by the Texas Pattern Jury Charges is preceded by conditioning language that reads:
If you have found that the product in question was defective in some manner that was a producing cause of the occurrence in question and you have also found that (the plaintiff) misused the product in some manner that was a proximate cause of the occurrence in question, and only in that event, then answer Question 3.
3 State Bar of Texas, Texas Pattern Jury Charges PJC § 72.02A (1982).
Allied also tendered a series of ten other more specific misuse issues. Each of these issues also assumed a disputed fact issue. Therefore, the trial court was justified in refusing to submit them. Tex.R.Civ.P. 279.
By cross-point, Allied contends that the court of appeals erred in holding that Placencio was not required to secure a jury finding that the bench grinder reached him without substantial change or alteration. In General Motors v. Hopkins, 548 S.W.2d 344 (Tex.1977), this court treated alteration as a type of misuse and thus as an affirmative defense on which the defendant had the burden of proof. See also Blackwell Burner Co., Inc. v. Cerda, 644 S.W.2d 512, 520 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.) Placencio met his burden as plaintiff by proving and securing jury findings that both a design and a marketing defect existed when the grinder left Allied's possession and that these defects were a producing cause of the occurrence. See Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969). Allied's cross-point is overruled.
Allied also had three points of error before the court of appeals that were not addressed by that court. While better practice would have Allied assign cross-points on these complaints as well, Allied is nevertheless entitled to have them considered. Roark v. Allen, 633 S.W.2d 804 (Tex.1982). To avoid unnecessary delay, we will consider these law points rather than remand them to the court of appeals.
In all three points, Allied contends that the trial court erred in refusing to submit its requested special issues and instruction on alteration. There is no evidence to show that Placencio altered the bench grinder; instead the alleged alterations were all acts done by Placencio's employer. The submission of special issues and instructions on product alteration is not required when it is alleged that someone other than the plaintiff altered the product; therefore Allied was not entitled to submission of these issues or to its proposed instruction. See Blackwell Burner Co., Inc. v. Cerda, 644 S.W.2d 512, 520 ().
We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
...
To continue reading
Request your trial
-
Elbaor v. Smith
...negligence and proximate cause questions in "substantially correct wording" as required by Rule 278. See Placencio v. Allied Indus. Int'l Exch., 724 S.W.2d 20, 21 (Tex.1987). The court of appeals held that the evidence raised issues of failure to mitigate, but not contributory negligence. A......
-
Texas Farmers Ins. Co. v. Soriano
...TEX.R.CIV.P. 273. A substantially correct instruction is "one that in substance and in the main is correct." Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20, 21 (Tex.1987). It has also been held that a requested instruction is substantially correct if it can be properly submitted as w......
-
Potter v. Chicago Pneumatic Tool Co.
...v. Searjeant Metal Products, Inc., 147 Ind.App. 46, 67, 258 N.E.2d 652 (1970) (Sharp, J., concurring); Placencio v. Allied Industrial International, Inc., 724 S.W.2d 20, 22 (Tex.1987).29 The trial court instructed the jury as follows: "Now, another area I have to discuss with you is the cla......
-
Stender v. Vincent
...defendant has either the sole burden of raising and proving substantial change as an affirmative defense, see Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20 (Tex.1987), or the burden of proving the issue in certain cases or in limited respects, see Andrews v. Harley Davidson, Inc., 1......
-
Table of Cases
...1.02.8.1, 1.02.14.1 Perry Homes v. Cull , 258 S.W.3d 580 (Tex. 2008), §§8.01.7, 8.01.7.2 Placencio v. Allied Indus. International, Inc ., 724 S.W.2d 20, 21-22 (Tex. 1987), §10.01.2 Plains Ins. Co. v. Evans , 692 S.W.2d 952 (Tex. App.—Fort Worth 1985, no writ), §10. 19 Plas-Tex, Inc. v. U.S.......
-
Trial: Part Two Court's Charge to Judgment
...or definition in writing and in “substantially correct wording.” Tex. R. Civ. P. 278; Placencio v. Allied Indus. International, Inc ., 724 S.W.2d 20, 21-22 (Tex. 1987); Select Ins. Co. v. Boucher , 561 S.W.2d 474, 479 (Tex. 1978). The definitions or instructions must be requested in connect......