Texas Employers' Insurance Association v. Jones, A-10628

• Decision Date: 14 July 1965
• Docket Number: No. A-10628,A-10628
• Citation: 393 S.W.2d 305
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. Kenneth Ray JONES, Respondent.
• Court: Texas Supreme Court

Page 305

393 S.W.2d 305

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. Kenneth Ray JONES, Respondent.

No. A-10628.

Supreme Court of Texas.

July 14, 1965.

Hardeman, Smith & Foy, San Angelo, for petitioner.

Warren Burnett and Robert D. Pue, Odessa, for respondent.

NORVELL, Justice.

This is a workmen's compensation case. The jury found that the injury sustained by the workman, Kennety Ray Jones, was confined to his right leg; that he suffered a temporary total loss of the use of such leg for nine weeks and that he sustained a 10% permanent partial loss of use of the leg. The judgment based upon this verdict was reversed by the Court of Civil Appeals upon the ground that the issue of total loss of use of the leg had not been properly submitted to the jury. 386 S.W.2d 615. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the District Court.

(1) The appeal turns upon the sufficiency of an objection to the trial court's definition of 'total loss of use.' Rule 274, Texas Rules of Civil Procedure provides that:

'A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. * * *' The trial court gave the following definition:

'By the term 'total loss of use' of a member is meant that the member during any given period of time does not possess any substantial utility as a part of the body for the purposes of work.'

The plaintiff-respondent made the following objection to this definition, viz.:

'Plaintiff objects to the definition of 'total loss of use' as a definition herein, and specifically requests the court to give the definition approved by the Supreme Court in the case of Seabolt v. The Travelers Insurance Company, for the reason that it fairly and reasonably submits total loss of use of a member.'

In Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex.1962), this Court considered the contention that the evidence, as a matter of law, did not support a jury's finding that Seabolt's injury had resulted in the 'loss of use of his hand.' See Article 8306, § 12, Vernon's Ann.Civ.Stat. We held that the words 'loss of use' as used in the statute meant 'total loss of use,' and that:

'A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.' ¹

When we read the pertinent parts of the record which are above set out, it is clear that plaintiff's objection to the trial court's definition consists of nothing more than a general objection, i. e., a statement that 'plaintiff objects to the (trial court's) definition of total loss of use as a definition herein,' coupled with a request that the trial court submit the definition contained in the Seabolt opinion, in lieu thereof.

(2) While it may be that sometimes a requested definition or explanatory instruction may be considered to explain somewhat loosely worded expressions contained in an objection, it has long been a rule of practice in this State that a general objection of the species we have here is in legal contemplation no objection, and that a mere request to submit a different definition than that proposed by the trial court cannot be considered as an objection pointing out distinctly the matter to which a litigant objects and the grounds of his objection.

In Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920 (1927), the Court considered an objection worded as follows:

'The plaintiffs excepts and objects (sic) to the court giving, in charge to the jury, the following portions of the charge, to wit.'

This statement of objection was followed by a paragraph of the court's charge.

It was held that this general objection was nugatory. It was stated in the opinion that:

'This statute ² was designed to correct a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.

'The objection must point out to the court the error complained of. If it fails to do that, it does not meet the purpose and requirement of the statute and is no objection at all.'

As bearing upon the contention that a requested charge could be considered as supplying an objection this Court in the Lennox case expressly approved the holding of the Court of Civil Appeals that:

'(A) party who has not objected to the main charge to the jury has no right to complain of the refusal of the court to give a requested special charge inconsistent with or contradictory of the main charge.' (224 S.W. 524)

Numerous authorities were referred to by the Court as supporting its holding and the Lennox case has subsequently been cited with approval upon the point at issue. In Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942), it was said that:

'(I)t was the duty of the insurer, if it desired to have that question reviewed on appeal, to specify in its objections to the charge the particulars in which same was incorrect and that duty was not discharged by requesting that the court submit the same questions in different forms. Art. 2185; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; Loving County v. Higginbotham, Tex.Civ.App., 115 S.W.2d 1110: error dismissed.'

Similarly, in City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951), decided long after the Texas Rules of Civil Rpocedure became effective in the trial courts, it was said that:

'Rule of Civil Procedure No. 274 provides: 'A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.' Assuming that the requested charges were more accurate than those given, a request to give them not coupled with any objection to the form used by the court will not be given effect as an objection to the issues as given. Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; C. H. Mountjoy Parts Co. v. Perfect Circle Co., Tex.Civ.App., 119 S.W.2d 186; Belzung v. Owl Taxi, Tex.Civ.App., 70 S.W.2d 288; 41 Tex.Jur., p. 1065, sec. 253.'

The rule applicable here was succinctly stated in the recent case of Bell v. Missouri-Kansas-Texas Railroad Co. of Texas, 334 S.W.2d 513, 1. c. 517 (Tex.Civ.App.1960, ref. n. r. e.) as follows:

'(A) request for another and different charge is not a substitute for an objection which is insufficient or absent and does not properly call error to the attention of the court.'

While it is fairly obvious that the trial court's definition of 'total loss of use' differs somewhat from that contained in the Seabolt opinion, this Court has never held that the failure to give an accepted...