Vega v. Grieger, No. 10194

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: GRAY
• Citation: 264 S.W.2d 498
• Parties: VEGA v. GRIEGER.
• Decision Date: 27 January 1954
• Docket Number: No. 10194

Page 498

264 S.W.2d 498 VEGA
v.
GRIEGER. No. 10194. Court of Civil Appeals of Texas, Austin. Jan. 27, 1954.
Rehearing Denied Feb. 17, 1954.

Carlos C. Cadena, San Antonio, David Longoria, Austin, for appellant.

Wofford, Fullerton & Barkley, Taylor, for appellee.

GRAY, Justice.

This suit was brought by appellant against appellee for damages for the alleged wrongful killing of her son, Arthur Vega. Art. 4671, Vernon's Ann.Civ.St.

Appellant alleged that appellee 'willfully and maliciously killed Arthur Vega by shooting him with a gun.' Appellee answered that the killing was done by him while in the discharge of his duty as a police officer in arresting Arthur Vega and his brother; that he acted in self defense, and that he used reasonable and necessary

Page 499

force to overcome resistance and repel an attack made upon him.

A trial to a jury was had, evidence was heard and upon the verdict of the jury a judgment was rendered that appellant take nothing.

The cause was submitted to the jury on two special issues as follows:

'Special Issue No. 1:

'Do you find from a preponderance of the evidence that the action of Fred Grieger in shooting and killing the deceased, Arthur Vega, was wrongful?

'Answer 'Yes' or 'No.'

'Answer: No.

'If you have answered Special Issue No. 1 'Yes,' and in that event only, you will answer the following special issue:

'Special Issue No. 2:

'What amount of money, if any, do you find from a preponderance of the evidence would, if paid now, reasonably compensate the plaintiff, Matilda Vega, for the loss of pecuniary benefits, if any, sustained by her as a result of the death Arthur Vega?

'Answer by stating the amount of dollars, if any, and cents, if any.

'Answer: _____.'

Special issue 2 was not answered.

In his charge to the jury the trial court gave the following instruction:

'By the term 'wrongful,' as used in Special Issue No. 1, means the use by defendant of a greater degree of force than was reasonable and necessary under the circumstances then existing and that the defendant was not at the time acting in his own self-defense, as below explained. In this connection you are charged that if at the time of the killing the deceased or his brother by his or their acts or conduct reasonably induced the defendant to believe that deceased or his brother was about to attack him with a deadly weapon which would probably cause defendant's death or some serious bodily injury, or if by the acts of the deceased or his brother, it reasonably appeared to defendant at the time, viewed from his standpoint alone, that deceased or his brother was then about to attack him with a deadly weapon which would probably cause defendant's death or some serious bodily injury, and if same was reasonably calculated to create in the mind of defendant, and did create in his mind, a reasonable expectation or fear of death or some serious bodily injury, and that defendant then and there, moved and actuated by such reasonable expectation or fear of death or serious bodily injury, shot and killed deceased, Arthur Vega, then under such circumstances the killing would be in his lawful self-defense and would not be 'wrongful.' It is not essential to the right of self-defense that real danger should exist. If from defendant's standpoint, and his standpoint alone, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger were real, and if he shot and killed the deceased under such circumstances, the killing would not be 'wrongful."

The converse of this charge was not given.

The jury was also told to answer the issues 'in the manner directed in connection with each of them'; not to consider any matter not before them in evidence under the rulings of the court, and not to consider the effect their answers might have 'on the outcome of this case.'

Appellant made various objections to special issue 1, that the charge quoted supra was incorrect, requested that certain special issues be given and objected to the instruction preceding issue 2 because it told the jury the effect of their answer to issue 1.

Page 500

We have reached the conclusion that in any event this cause must be reversed and remanded because of the instruction preceding issue 2, and in view of another trial that we should notice the instruction quoted supra.

Rule 277, Texas Rules of Civil Procedure, provides that in all jury cases the court may, and upon the request of either party shall, submit the cause upon special issues 'except that, for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge.' It also provides that the court shall submit such explanatory instructions and definitions of legal terms 'as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues' and that in such instances the charge shall not be subject to the objection that it is a general charge. The source of this rule is Art. 2189. This article provided for the submission of causes upon special issues and in connection therewith for the giving of such explanations and difinitions of legal terms as are necessary to enable the jury to pass upon and render a verdict on the issues. Under that article the giving of a general charge has many times been held to be reversible error. Mayfield Co. v. Pepper, 129 Tex. 307, 103 S.W.2d 737. In Lamb v. Collins,...