Yellow Cab & Baggage Co. v. Green

• Decision Date: 30 March 1955
• Docket Number: No. A-4733,A-4733
• Citation: 277 S.W.2d 92,154 Tex. 330
• Parties: YELLOW CAB AND BAGGAGE COMPANY et al., Petitioners, v. Mrs. Jewell GREEN, Respondent.
• Court: Texas Supreme Court

Page 92

277 S.W.2d 92

154 Tex. 330

YELLOW CAB AND BAGGAGE COMPANY et al., Petitioners, v. Mrs. Jewell GREEN, Respondent.

No. A-4733.

Supreme Court of Texas.

March 30, 1955.

Rehearing Denied April 27, 1955.

Jones, Parish & Fillmore, Wichita Falls, for petitioners.

E. W. Napier, Wichita Falls, for respondent.

GRIFFIN, Justice.

This is an action for personal injuries suffered by respondent, Mrs. Jewell Green, as a result of a collision between a taxicab belonging to petitioner and an automobile belonging to a third party, and in which cab, at said time of the collision, respondent, Mrs. Jewell Green, was a passenger. The cause was submitted to a jury, and upon their verdict, the trial court rendered a judgment for respondent against petitioner. Petitioner appealed to the Court of Civil Appeals. That Court affirmed the trial court's judgment. 268 S.W.2d 519.

Petitioner comes to this Court upon four points of error, all of which have to do with the refusal of the trial court to give an affirmative instruction excluding damages resulting to Mrs. Green by virtue of prior infirmities, except in so far as Mrs. Green's physical condition prior to the injury involved in this litigation may have been aggravated as a result of petitioner's negligent act. The Court of Civil Appeals held that the petitioner would have been entitled to such affirmative instruction had petitioner presented to the trial court, and accompanying petitioner's objections to the court's charge, a correct instruction; but that since petitioner only objected to the court's charge, he could not complain of the failure of the trial court to limit his charge as requested. There is no dispute as to the facts surrounding this procedural point. All complaint has to do with Special Issue No. 23, and the accompanying instruction given by the Court. These are as follows:

'Special Issue No. 23:

'What amount of money, if any, if now paid in cash, do you find from a preponderance of the evidence would reasonably compensate the Plaintiff, Mrs. Jewell Green, for the damages, if any, which she has sustained, or will, in all reasonable probability, sustain in the future, as a direct and proximate result of the negligence, if any, of the Defendant herein? Answer in dollars and cents, or 'None'.

'In answering the foregoing Issue, you will take into consideration only the following elements: Physical and mental pain and suffering, if any, which Mrs. Jewell Green has suffered to the time of the trial, and such physical and mental pain and suffering, if any, which Mrs. Jewell Green will, in all reasonable probability, suffer in the future; and the loss of earnings, if any, from the date of the collision to the time of this trial, and the reasonable value of her reduced capacity, if any, to labor and earn money in the future, if you find that her capacity to labor and earn money will, in reasonable probably, be diminished in the future. You will not allow any sum of money for any pain and suffering, loss of earning, or earning capacity, except those which you find to be directly and proximately caused by the negligence, if any, of the Defendant herein.'

In the case of Texas Employers' Ins. Ass'n v. Mallard, 1944, 143 Tex. 77, 182 S.W.2d 1000, 1002, there was before this Court the same legal question as is here involved. After quoting from Rule 274 and Rule 279, T.R.C.P., this Court clearly declared the law to be that a good and sufficient objection to the instruction given by the trial court was sufficient, and that the party complaining of the erroneous instruction was not required to go farther and submit 'a substantially correct definition or explanatory instruction' as provided in Rule 279, and says:

'It seems clear to us that this case falls under Rule 274 and not Rule 279. Rule 279 applies when there is a failure to submit a definition, while Rule 274 applies when a definition is actually contained in the charge, but the complaining party objects to it because it is thought to be erroneous. When the court fails to define a term which a litigant is entitled to have defined Rule 279 is applicable; but when, as here, the court's charge does contain a definition, but same is unsatisfactory to the litigant, Rule 274 is applicable.'

See also Dallas Ry. & Terminal Co. v. Ector, 1938, 131 Tex. 505, 116 S.W.2d 683 Russell Const. Co. v. Ponder, 1945, 143 Tex. 412, 186 S.W.2d 233(7); Hines v. Kelley, Tex.Com.App.1923, 252 S.W. 1033; Robertson & Mueller v. Holden, Tex.Com.App.1928, 1 S.W.2d 570; 41 B Tex.Jur. 672, et seq., Sec. 511, Trial-Civil Cases.

We hold that in a case where the trial court gives a definition or an instruction in connection with a special issue, and a party is not satisfied with the instruction or definition given, all that is necessary to be done by the complaining party is to file an objection to the court's instruction or definition specifically and clearly pointing out wherein it is claimed the given instruction or definition is insufficient or is in error. It is not necessary for the objecting party to tender with his objection a substantially correct instruction or definition. Rule 274, Vernon's Annotated Texas Rules of Civil Procedure. When the court's charge contains no instruction, the complaining party must accompany his clear and specific objections to such omission with a substantially correct definition or explanatory instruction.

This brings us to the question as to whether or not Special Issue No. 23, together with its explanatory instruction was sufficient to confine the jury to a consideration of the amount of money damages to be awarded, if any, to those directly and proximately resulting from the petitioner's negligence. Petitioner claims that said instruction did not affirmatively exclude from the consideration of the jury such damages the respondent may have suffered...