Tyrrell Hardware Co. v. Orgeron

• Court: Texas Court of Appeals
• Writing for the Court: Hightower
• Citation: Tyrrell Hardware Co. v. Orgeron, 289 S.W. 1040 (Tex. App. 1926)
• Decision Date: 22 December 1926
• Docket Number: (No. 1434.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: TYRRELL HARDWARE CO. v. ORGERON.

289 S.W. 1040

TYRRELL HARDWARE CO. v. ORGERON.

(No. 1434.)^*

Court of Civil Appeals of Texas. Beaumont.

December 22, 1926.

Rehearing Denied January 5, 1927.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Albert Orgeron, by his next friend and father, Emile Orgeron, against the Tyrrell Hardware Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hunt & Teagle, of Houston, for appellant.

Howth, Adams & Hart, of Beaumont, for appellee.

HIGHTOWER, C. J.

This suit was filed by the appellee, Albert Orgeron, by his next friend and father, Emile Orgeron, against appellant, Tyrrell Hardware Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff in consequence of negligence on the part of appellant.

Stated briefly, it was alleged in the plaintiff's petition that on a certain day he was riding his motorcycle on Crockett street, in the city of Beaumont, and that, at or near the intersection of Crockett street with Railroad avenue, his motorcycle was struck by an automobile truck that was driven by an employee of appellant, and that plaintiff was knocked or thrown from the motorcycle and sustained certain personal injuries, which he described in his petition, and that his motorcycle was also damaged to the extent of $65.

Plaintiff alleged that appellant's driver was guilty of negligence in seven different particulars, and it is unnecessary to here state these specific allegations of negligence.

Appellant answered by general demurrer and general denial and by specific pleas of contributory negligence on the part of the plaintiff, Albert Orgeron, and these specific allegations are unnecessary to be stated here.

The case was tried with a jury and was submitted upon special issues, and, upon the verdict of the jury in answer to these issues, judgment was rendered in favor of appellee, Albert Orgeron, for the aggregate amount of $3,000, and from that judgment this appeal is prosecuted.

After defining negligence, ordinary care, proximate cause, and contributory negligence, the trial court submitted to the jury special issue No. 2, which was as follows:

"Was the driver of defendant's truck, in the operation of said truck at the time of the accident, guilty of negligence?"

To this question the jury answered, "Yes."

Before the court's charge and submission of issues was read to the jury, and in due time, counsel for appellant presented to the trial judge his written objections and exceptions to the court's charge, one of which exceptions and objections was that issue No. 2, just above quoted, was too general and did not confine the jury to any specific allegation of negligence contained in the appellee's petition. This objection was overruled by the trial court, and that action is assigned as error by appellant, and the assignment must be sustained.

It is well settled by the authorities in this state that a plaintiff in a case of this character can only recover damages upon some one or more of the acts of negligence alleged in his petition, and, when the case is submitted upon special issues, only the specific acts of negligence alleged in the plaintiff's petition and supported by evidence should be submitted for the jury's consideration. Rosenthal Dry Goods Co. v. Hilldebrandt (Tex. Civ. App.) 280 S. W. 882; Northern Texas Traction Co. v. Gilbert (Tex. Civ. App.) 282 S. W. 850, and authorities there cited; Munger Automobile Co. v. American Lloyds of Dallas (Tex. Civ. App.) 267 S. W. 304; Fox v. Dallas Hotel Co., 111 Tex. 475, 240 S. W. 517.

Counsel for appellee, by several counter propositions in this connection, insist that we should not consider appellant's assignment of error challenging the action of the trial court in submitting special issue No. 2, as above shown, for the reason that appellant has not presented that matter to this court by a bill of exceptions, taken to the action of the trial court in overruling appellant's objection to the issue as presented to the trial court. In other words, counsel for appellee contend that, in order for appellant to urge that the submission of special issue No. 2 was erroneous, appellant was required to except to the ruling of the trial court at the time appellant's written objections to the charge were overruled, and that the written objections to the charge, though showing that appellant's objections were all overruled and that action duly authenticated by the official signature of the trial judge, is not sufficient to present the matter to this court. We overrule this contention. We are unable to understand why appellant, after timely written objections to the court...