Wagley v. Fambrough

• Decision Date: 19 June 1942
• Docket Number: No. 2274.,2274.
• Citation: 163 S.W.2d 1072
• Parties: WAGLEY et al. v. FAMBROUGH.
• Court: Texas Court of Appeals

163 S.W.2d 1072

WAGLEY et al. v. FAMBROUGH.

No. 2274.

Court of Civil Appeals of Texas. Eastland.

June 19, 1942.

Rehearing Denied July 10, 1942.

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Action by Mrs. Dave Wagley and others against Alex Fambrough, to recover damages, actual and exemplary, for the alleged wrongful death of Dave Wagley, deceased. From a judgment in favor of the defendant, the plaintiffs appeal.

Judgment reversed, and cause remanded.

Grisham & Grisham, of Eastland, for appellants.

Frank Sparks, of Eastland, and Floyd Jones and D. T. Bowles, both of Breckenridge, for appellee.

FUNDERBURK, Justice.

Mrs. Dave Wagley, widow of Dave Wagley, deceased, as also A. L. Wagley and Annie J. Wagley, father and mother, respectively, of said Dave Wagley, brought this suit against Alex Fambrough to recover damages — actual and exemplary — for the alleged wrongful death of said Dave Wagley.

In a jury trial, judgment having been rendered on the verdict of the jury in favor of Defendant, Plaintiffs have appealed.

Appellants, who will hereinafter also be referred to as Plaintiffs, in their brief of 185 pages, set forth in numerical order under the heading "Points Upon Which This Appeal is Predicated" a list of 61 "points" comprising over 13 pages of the brief.¹

Appellee, who will also be hereinafter referred to as Defendant, makes two objections to Appellants' brief. It is first objected, in effect, that from page 165 to 182, inclusive, certain errors are alleged which are not embraced in any of the "points." We sustain this objection and decline to consider the questions sought to be presented in such way.

The other objection is to our consideration of "points" 2 to 24, inclusive, and to the assignments of error upon which they are dependent for support, upon the grounds, among others, that each such "assignment or point of appeal is * * * too general and does not point out wherein the appellee's pleading is insufficient and as presented * * * are confusing, unintelligible, and not presented in such way that this court is able to pass upon the alleged complaints and this appellee is unable to answer the same herein."

What is a point? Does a point in the appeal of a case in which a motion for new trial is required mean the same thing, or have the same function, as a point in the appeal of a case wherein no motion for new trial is required? Presumably, the answers to these questions are to be found, if at all, in the provisions of the Rules themselves and particularly Rules 320, 321, 322, 324, 374 and 418. The former practice of requiring assignments of error is, by Rule 374, abolished as to all cases in which, under Rule 324, a motion for new trial is not required as a "prerequisite" to an appeal. In all other cases, assignments of error are required. Points are made an indispensable part of every brief. That assignments of error, in addition to points, are required in all cases except where no motion for new trial is required is implicit in the provision of Rule 418 to the effect that the points must be germane to one or more assignments of error. Rule 374 makes express provision that in cases in which a motion for new trial is required, such motion shall constitute the assignments of error.

In the former practice the function of an assignment of error was to designate, point out, or identify a particular ruling (action or proceeding) of the court claimed upon appeal to be erroneous. Clarendon Land, Investment & Agency Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 22 L.R.A. 105. It was held that the reasons why it was claimed that, in a particular ruling, the court had erred constituted no part of the assignment of error. Brackenridge v. Claridge, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593; Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S.W. 29, 750, 35 L.R.A. 241. The Legislature in R.S.1925, Art. 1844, Vernon's Ann.Civ.St. Art. 1844, prescribed a test of the sufficiency of an assignment of error in these words: "an assignment shall be sufficient which directs the attention of the Court to the error complained of." Herein was legislative recognition of the function of an assignment of error in harmony with the Supreme Court's decision in Clarendon L., I. & A. Co. v. McClelland, supra. The word "error", of course, referred to the alleged wrong ruling of the court and not to the reasons why it was claimed to be wrong. But Art. 1844 has, perhaps, been repealed; and Rule 418, making provision for a statement of the points upon which the appeal is predicated, further provides that "Such points will be sufficient if they direct the attention of the court to the error relied upon * * *." Here is plainly expressed recognition that a "point" serves the purpose, or performs the function, which an assignment of error did under the former practice. But if so, it is natural to wonder why in some cases (those in which a motion for new trial is required) assignments of error in addition to points are required. Certainly it would seem there has been no change in meaning or function of assignments of error. Then why require both points and assignments of error when by the prescribed test of the sufficiency of each they perform exactly the same function? Next, this question occurs: if in any case both points and assignments of error are required, why not in all cases? In the appeal of cases in which no motion for new trial is required by the Rules, and as to which Rule 374 provides that "in such cases no assignments of error shall be necessary", what has been substituted to perform the function of assignments of error? The answer to this question by the Rule is as follows: "Complaint of the action of the court on all matters arising under circumstances where no motion for new trial is required by these rules, if relied upon on appeal, shall be included in the statement of points * * *." While this answers the last question, it raises another: does a point which serves the dual purpose of a point and assignment of error have the same characteristics as a point which under Rule 418 is required to be "germane to one or more assignments of error" and "need not be copied in the brief" although the point itself must be included in the statement of points in the brief? If the answer be no — that it does not have the same characteristics — then wherein does it differ? Would the definition of one kind of point be a good definition of the other kind? If the answer be that the two kinds of points do have the same characteristics, then it becomes even harder to understand why should both assignments of error and points ever be required in any case.

There is absent any express provision in any of the Rules to the effect that a point is the same thing as a proposition in the former practice, or a substitute therefor. But the identity of points and propositions, as to subject matter, was recognized in Rule 30 (142 S.W. xiii) established in 1892. That rule provided that "each point under each assignment shall be stated as a proposition unless the assignment itself may sufficiently disclose the point * * *." This rule was amended in 1921 by a provision relating to "propositions or points" employing the terms interchangeably or as meaning the same thing. Wright v. Maddox, Tex.Civ.App., 286 S.W. 607; Texas Employers' Ins. Ass'n v. Teel, Tex.Civ.App., 40 S.W.2d 201; Sheppard v. City & County of Dallas Levee Imp. Dist., Tex.Civ.App., 112 S.W.2d 253; Morrison v. Sewell, Tex.Civ.App., 4 S.W.2d 1029. Since points and propositions prior to the new rules were understood to mean the same thing, the provisions of new rules relating to points, with no definition of the term, would seem to imply the intention of the lawmakers that the word be understood the same as before.

Now the primary and distinguishing characteristic of a proposition, or point, under the former practice was that it constituted the statement of a reason why the court, in a particular ruling or action, erred as alleged in the assignment of error to which such proposition or point was germane. It would seem to follow that a purported point which fails to state any reason why the court, in a particular ruling or action, has erred, as contended, would not be a point within the provisions of the Rules. The reasonable conclusion would appear to be that a purported point from which was absent the statement of any reason designed to support a contention that a particular ruling was wrong would be ineffective to authorize appellate review of any particular ruling or action of the trial court. For example, Appellants' Second Point is: "The error of the court in overruling plaintiffs' exception to allegations of inadmissible matter." It obviously does not purport to state any reason why the court erred in overruling the exception. It would constitute no proposition or point at all under the former practice. Rather somewhat like a subject index it purports to identify a particular assignment of error distinguishing it from the other assignments of error.

There is, however, a seemingly insuperable obstacle to the conclusion that this point does not comply with the New Rules. As said before, Rule 418 provides as to points the same as was formerly provided as to assignments of error, viz., that "such points will be sufficient if they direct the attention of the court to the error relied upon." In other words, a purported point although it states no reason why it is contended that the court has erred in any ruling or action is nevertheless sufficient if it simply refers to a particular ruling or action, thereby identifying it as one claimed to be erroneous. By such test, we think points 2 to 24, inclusive, are not subject to the objections urged to their consideration. And since the test of the sufficiency of an assignment of error is the same as a point it also follows from the conclusion that the objections to the points are not well taken, that the...