Traders & General Ins. Co. v. Jenkins

• Decision Date: 19 June 1940
• Docket Number: No. 1830-7527.,1830-7527.
• Citation: 141 S.W.2d 312
• Court: Texas Supreme Court
• Parties: TRADERS & GENERAL INS. CO. v. JENKINS.

Page 312

141 S.W.2d 312

TRADERS & GENERAL INS. CO. v. JENKINS.

No. 1830-7527.

Commission of Appeals of Texas, Section B.

June 19, 1940.

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

Suit under the Workmen's Compensation Act by W. B. Jenkins against the Traders & General Insurance Company to set aside an award of the Industrial Accident Board. To review a judgment for the plaintiff, defendant brought error to Court of Civil Appeals which certified questions to the Supreme Court.

Questions answered.

Simpson, Dorenfield & Fullingim, of Amarillo, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.

James O. Cade, of Amarillo, for defendant in error.

TAYLOR, Commissioner.

The following are the material statements of the certificate certifying, in a workmen's compensation case, the three questions set out at the conclusion of the certificate:

"The defendant in error, W. B. Jenkins, filed the suit in the district court of Potter County as an appeal from an award of the Industrial Accident Board. The case was submitted to a jury upon special issues and upon their findings to the effect that defendant in error was totally and permanently incapacitated by the injuries received * * *, the court rendered judgment against plaintiff in error * * *.

"In submitting the case to the jury upon special issues the court made use of the general form which has come to be almost universally employed in framing the special issues, in substance, viz: `do you find from the preponderance of the evidence,' and after completing the special issue, instructing the jury to answer `Yes' or `No.' "The assignments of error complain of a number of special issues so framed, asserting that the form used placed the burden of proof, both as to an affirmative and a negative answer, upon the parties plaintiff and defendant respectively. Special issue No. 2-a furnishes an example of the form of special issues used throughout the charge. It is as follows: `Do you find, from a preponderance of the evidence, that such injury, if any, sustained by the plaintiff on or about May 31, 1937, rendered the plaintiff totally incapacitated for work? Answer Yes or No.'

"In the preceding portion of the charge, the court instructed the jury as follows: `By the expression "preponderance of the evidence" is meant the greater degree and weight of credible testimony before you.'

* * * * *

"Since the decision by the Court of Civil Appeals at Waco in the case of Psimenos v. Huntley, 47 S.W. (2d) 622, a number of decisions have been handed down by the Courts of Civil Appeals in which it is strongly indicated, if not, in fact, held outright, that any special issue in which it is required that the jury answer `from a preponderance of the evidence' and at the conclusion of which the jury is required to answer `Yes' or `No', or the form of their answer is otherwise prescribed in an alternative manner, constitutes the placing of the burden of proof upon both parties; that is, upon the plaintiff to establish the affirmative, and upon the defendant to establish the negative, of the issue submitted. McClelland v. Mounger [Tex.Civ.App.], 107 S.W. (2d) 901; Fidelity & Casualty Co. v. Van Arsdale [Tex.Civ.App.], 108 S.W. (2d) 550; Federal Underwriters Exchange v. Rigsby [Tex.Civ.App.], 114 S.W. (2d) 354.

* * * * *

"Since the members of this court do not agree as to whether or not the special issue No. 2-a involved in the instant case possesses the same vice as was revealed in the case of Psimenos v. Huntley, supra, we deem it advisable to submit to your Honors the following questions:

"1st.

"In submitting special issue No. 2-a in the form quoted above, did the trial court place the burden upon the plaintiff in error (defendant below) of proving the negative of the question asked?

"2nd.

"Did the form of the special issue No. 2-a adopted by the trial court definitely place the burden of proof upon the defendant in error (plaintiff below) of establishing the affirmative of the question asked?

"3rd.

"Did the submission of special issue No. 2-a in the form adopted by the trial court have the effect of confusing the matter of the burden of proof to the extent that it was erroneous?"

The second question certified will be answered first.

A reading of the question asked in submitting the issue, together with the only answer that could be made under the instruction, indicating that plaintiff was totally incapacitated, discloses that the burden of proving that fact was definitely placed upon him. The second question is answered "Yes". Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 214.

In the case cited the form of the issue involved, reading "was or was not the plaintiff * * * totally disabled," together with the preceding portion of the charge quoted above, does not place the burden upon plaintiff. The burden is not thereby placed upon plaintiff any more than upon defendant. Nor does the instruction to answer "yes" or "no" place the burden definitely upon plaintiff. It is stated in the opinion that the use of the words "was or was not" in the question, followed by the instruction to answer "yes" or "no", was confusing, and that the question could not be categorically so answered and leave the meaning of the answer "free of all uncertainty." The form of submission was therefore objectionable, but the cause was not reversed upon that ground.

The case was reversed, however, upon another ground; and in view of another trial and the frequency with which the court was being called upon "to determine the correctness of the form of special issues," the suggestion was made that the question upon each issue be so framed as to place the burden, and a form of question was framed in the opinion to meet that suggestion. It reads: "`Do you find from the preponderance of the evidence that' (following with the question to be determined)." In other words it was suggested that every issue be so framed as to itself place the burden of proof.

In the Huntley case, which was decided in the light of the holdings and suggestion made in the Federal Surety Company case, the form of submission involved reads : "Was the defendant * * * driving his car at a speed in excess of 25 miles per hour? Answer `yes' or `no' from a preponderance of the testimony."

The form of the question placed the burden nowhere. The burden of proving the fact inquired about was upon plaintiff, and the result of the instruction to answer "from a preponderance of the testimony", together with a "yes" answer, so placed the burden. The burden to prove the negative of the fact inquired about did not rest upon defendant, however, but the result of the instruction to answer "from a preponderance of the testimony," taken in connection with a "no" answer, improperly placed the burden upon defendant. For this reason the form of submission in the Huntley case was erroneous.

Chief Justice Gallagher correctly concluded that defendant had a right "to have either a specific instruction placing upon appellee [plaintiff] the burden of proving the affirmative of such question, or to have such question so framed that the jury would necessarily understand that the same should be answered affirmatively only in event the testimony preponderated in favor of such answer, and, absent such preponderance, in the negative." (Italics...