Walker v. Hirsch Cooperage Co.

• Decision Date: 22 January 1922
• Docket Number: (No. 287-3538.)
• Parties: WALKER v. HIRSCH COOPERAGE CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

236 S.W. 710

WALKER v. HIRSCH COOPERAGE CO.^*

(No. 287-3538.)

Commission of Appeals of Texas, Section A.

January 22, 1922.

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

Action by James Walker against the Hirsch Cooperage Company. From a judgment of the Court of Civil Appeals (222 S. W. 1116), affirming a judgment for defendant, plaintiff brings error. Judgment reversed, and cause remanded for further trial.

Charles Murphy, of Houston, for plaintiff in error.

Fouts & Patterson and Baker, Botts, Parker & Garwood, all of Houston, for defendant in error.

RANDOLPH, J.

This suit was filed by the plaintiff, Walker, against Hirsch Cooperage Company, defendant, in the district court of Harris county, to recover damages for personal injuries alleged to have been inflicted on the plaintiff by the negligence of the defendant and its foreman. The case was submitted to the jury by the court upon special issues, and judgment for defendant rendered on such issues and answers thereto. From this judgment the plaintiff appealed to the Court of Civil Appeals for the First District, and the case was from there transferred by the Supreme Court to the Court of Civil Appeals for the Ninth District, and that court affirmed the case, 222 S. W. 1116, and, writ of error having been granted, the case is now before us for consideration.

The only questions we can consider under the terms of the application are the questions arising from the failure and refusal of the Court of Civil Appeals to consider and sustain plaintiff's assignments of error 1, 2 and 3. The plaintiff based his claim for damages upon five different grounds of negligence on the part of defendant and its foreman, but the trial court submitted only one ground, whether or not the injury was inflicted by the foreman and another employee by the throwing of a bundle of iron hoops on a truck so that same passed over and fell upon the foot of plaintiff, injuring him in the manner alleged.

The plaintiff filed with the court certain other written issues, as follows:

"Was the defendant or its foreman negligent in loading said vehicle or truck with too great a load, or in an unsafe and defective manner? You will answer yes or no."

"Was the defendant negligent in furnishing a defective truck or other vehicle with defective braces or supports or other defective parts and requiring plaintiff to work therewith in said condition? You will answer yes or no."

"Was the plaintiff, James Walker, injured while in the employ of the defendant during 1916, substantially in one or more of the ways set out by him in his petition? You will answer this yes or no"

—each of these issues giving the style and number of the case, numbered ____, and upon each of the issues so tendered was indorsed the word "Refused," signed "Wm. Masterson, Judge." These appear to have been filed in the district court of Harris county during the trial of the case. Except by the word "Refused" and the signature of the judge, there is no evidence in the record that these issues were tendered the trial court before the case was submitted to the jury. The honorable Court of Civil Appeals, in refusing to consider the three assignments based upon the refusal of the trial court to submit the above three issues to the jury, base their action on the ground that there is no statement in the brief showing that these special issues were requested in writing before the case was submitted to the jury, and say:

"Nor does it even appear from the statement in the brief following the assignment that such issues were requested at any time and refused by the court; for that reason, as well as others pointed out by the appellee, we decline to consider the first three assignments. The holdings of all the courts on this point are so numerous that a mention of the decisions would be superfluous."

To fully understand the further holding of the Court of Civil Appeals a recourse must be had to appellee's brief to ascertain the other reason pointed out by it. The additional reason given by appellee in its brief is "the assignments are not correctly copied in the brief." To understand this objection and the holding of the Court of Civil Appeals, further recourse being had to the record, it appears that these three issues were filed in the lower court, as stated above; that in preparing his motion for a new trial the plaintiff, along with other issues refused, includes in one subdivision No. 4 these three issues and the refusal thereof by the court as grounds for a new trial. Subdivision 4 of the motion contains each of these issues under separate headings and paragraphs. In the preparation of his brief filed in the Court of Civil Appeals plaintiff selects certain paragraphs of that subdivision for his three assignments, and ignores or waives the others. The assignments are in the exact language of the selected paragraphs, and present the issues as copied above in respective order, except that the style and number of the case and the words "You will answer this yes or no" are left off.

Article 2020, Vernon's Revised Civil Statutes, 1920, is as follows:

"Motion for New Trial, etc., Requisites of.— Every such motion shall be in writing and signed by the party or his attorney, and shall specify the ground upon which it is founded, and may be amended under leave of the court, and no grounds other than those specified shall be heard or considered."

The issues having been clearly presented, we do not think because plaintiff chose to include the refusal of several issues in one subdivision of his motion for a new trial he violates any law or rule of practice. The presentation of these assignments taken from one subdivision of the motion as separate assignments naturally follows as being permissible. The contention as made by appellee that they should not be considered because they are not correctly copied in the brief refers to the fact that the whole of subdivision 4 is not copied in the brief, insisting that paragraph 4 is the assignment upon which plaintiff must rely.

In the case of Green v. Hall, 228 S. W. 184, in an opinion by Judge Spencer of this section, the Supreme Court has approved the holding that an assignment numbered 4 as it appeared in the motion for new trial, and "third" as it appeared in the assignments filed in the district court subsequent to the adjournment of the term, should be considered, even though it charges error in refusing to give an issue which really contained four issues.

"It is to be borne in mind, that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions. It is certain that it was never intended to hedge either the Court of Civil Appeals or the Supreme Court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek...