Workmen's Loan & Finance Co. v. Dunn

• Decision Date: 26 October 1939
• Docket Number: No. 2157.,2157.
• Citation: Workmen's Loan & Finance Co. v. Dunn, 134 S.W.2d 370 (Tex. App. 1939)
• Parties: WORKMEN'S LOAN & FINANCE CO. v. DUNN.
• Court: Texas Court of Appeals

134 S.W.2d 370

WORKMEN'S LOAN & FINANCE CO. v.DUNN.

No. 2157.

Court of Civil Appeals of Texas. Waco.

October 26, 1939.

Rehearing Denied December 14, 1939.

Appeal from Navarro County Court; Paul H. Miller, Judge.

Action by Sam Dunn against the Workmen's Loan & Finance Company and another on a verbal contract for alleged balance due for personal services.From a judgment for the plaintiff, named defendant appeals.

Reversed and remanded.

J. C. Jacobs and J. C. Roe, both of Corsicana, for appellant.

Richard & A. P. Mays, of Corsicana, for appellee.

GEORGE, Justice.

This is a suit on a verbal contract for the sum of $410.80, alleged to be the balance due and unpaid for personal services.It was instituted in the county court of Navarro county by Sam Dunn against M. Evans individually and Workmen's Loan & Finance Company, a corporation.Defendants plead general demurrer, special exceptions, general denial, plea of payment and estoppel.The case was tried before the court and a jury and judgment was rendered for San Dunn against Workmen's Loan & Finance Company for the sum of $190, together with interest and costs of suit; hence this appeal by Workmen's Loan & Finance Company.

The court submitted to the jury only one issue, which roads as follows: "What sum of money, if any, do you find by a preponderance of the evidence that the defendant, Workmen's Loan & Finance Company, owed to the plaintiff, Sam Dunn, for services, if any, performed by Sam Dunn for said defendant, from January 1, 1937, to and including May 15, 1938?Answer in dollars and cents," and gave in connection therewith the following instruction: "You are instructed in connection with the above issue as follows: If you believe by a preponderance of the evidence that the defendant has paid the plaintiff, Sam Dunn, in full for said services performed during the period aforesaid, if they were performed, or if you believe that the said Sam Dunn accepted a sum of money less than the amount he claims due him, in full payment and satisfaction of said services, then in either event you will answer said question, `nothing.'"

The appellant, Workmen's Loan & Finance Company, at the proper time, presented to the trial judge its requested special issue No. 1, reading as follows: "Do you find by a preponderance of the evidence that defendant, Workmen's Loan & Finance Company, has paid Sam Dunn, plaintiff, in full for his services rendered from January 1, 1937 to May 6, 1938?Answer `Yes' or `No,'" which is endorsed at the foot thereof as follows: "Refused—to which action of the courtdefendant then and there in open court excepted.Paul H. Miller, County Judge."

Appellant says the trial court committed reversible error in refusing to give its requested special issue No. 1.Appellee contends that (1)this court is not authorized to consider appellant's assignment of error presenting the proposition that the trial court erred in refusing to submit its requested special issue No. 1, for the reason that the record does not affirmatively show that such special issue was submitted to opposing counsel; and (2) that the issue and instruction given in connection therewith by the trial court submitted the question of payment to the jury for determination.

Where the record shows that a special requested issue was presented to the trial judge in limine and that exception was taken to his refusal to submit same to the jury, it will be conclusively presumed, in the absence of a proper showing to the contrary, that the trial judge performed his duty by submitting such charge to opposing counsel.Shipley v. Missouri K. & T. Ry. Co., 110 Tex. 194, 217 S.W. 137, pars. 1 and 2;Hartford Fire Ins. Co. v. Clements, Tex.Civ.App., 34 S.W.2d 355, par. 5;Sanger v. First National Bank of Amarillo, Tex.Civ.App., 170 S.W. 1087, par. 1;Arts. 2186 and 2188, Revised Civil Statutes of Texas.

It is a well settled principle of practice that a litigant is not entitled to have two issues submitted which are opposites one to the other.That is to say, a litigant is not entitled to a complete duplication in the submission of the special issues which present solely a positive and negative phase of the same question.Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S. W.2d 314;Wichita Valley Ry. Co. v. Williams, Tex.Civ.App., 6 S.W.2d 439;Hutton v. Burkett, Tex.Civ.App., 18 S.W.2d 740, par. 10;Williams v. Rodocker, Tex.Civ. App., 84 S.W.2d 556, par. 5.

It is also a well established rule of practice that a defendant is entitled to an affirmative submission of all defensive issues raised by his pleadings and evidence.Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268;Colorado & S. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908;Greer v. Thaman, Tex.Com. App., 55 S.W.2d 519;Montrief & Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276;Northern Traction Co. v. Woodall, Tex. Com.App., 299 S.W. 220;Missouri K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S.W. 1058;Gammage v. Gamer Co., Tex. Com.App., 213 S.W. 930;Campbell v. Johnson, Tex.Com.App., 290 S.W. 526;Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517.

It is likewise settled in cases involving converse issues that both should be submitted, though partial duplication may result.Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, par. 5;Greer v. Thaman, Tex.Com.App., 55 S.W. 2d 519, par. 3.

Appellant's pleadings and proof raise the issue of payment in full of all amounts due by it to appellee.On the other hand, appellee's pleadings...