Yellow Cab & Baggage Co. v. Green

• Decision Date: 16 April 1954
• Docket Number: No. 15490,15490
• Citation: 268 S.W.2d 519
• Parties: YELLOW CAB & BAGGAGE CO. v. GREEN.
• Court: Texas Court of Appeals

Page 519

268 S.W.2d 519

YELLOW CAB & BAGGAGE CO. v. GREEN.

No. 15490.

Court of Civil Appeals of Texas, Fort Worth.

April 16, 1954.

Rehearing Denied May 14, 1954.

Jones, Parish & Fillmore, and Clyde Fillmore, Wichita Falls, for appellant.

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

MASSEY, Chief Justice.

On March 5, 1954, we entered judgment reversing the judgment of the trial court and remanding the cause for another trial. After further study of the case on motion for rehearing, we have come to the conclusion that we were in error in so doing. The former opinion is hereby withdrawn and the following substituted therefor.

Judgment in favor of a plaintiff was rendered in a suit growing out of a collision between a taxi of the defendant company and another vehicle, in which collision the plaintiff, a passenger in the taxi, sustained personal injuries. The defendant company appeals.

Judgment affirmed.

Appellee, a widow, was a passenger in appellant's taxicab on December 24, 1952, at approximately 6:00 P. M., when it was involved in a collision in the City of Wichita Falls. Appellee claimed that she sustained injuries to her right arm, right leg, and back, as well as injuries to her nervous system, all of which injuries, except to the arm and leg, persisting down to the date of the trial, some four months subsequent to the date of the collision. Her claim was that as result of such injuries she was completely and totally disabled from doing any kind of work, and that the injuries caused severe pain. It was developed during the course of the trial that appellee had suffered previous disabilities and infirmities as result of operations prior to the time of the collision and the appellant claimed that such previous disabilities and infirmities caused the nervous condition from which appellee suffered at time of the trial, and appellant further claimed that if she did sustain any injuries as result of the collision in question, such injuries only aggravated the disabilities, infirmities and nervous condition existent at and prior to the time of the collision.

Trial was to a jury and all the special issues submitted were answered favorably to the appellee, and the judgment entered thereupon awarded damages to her for her injuries.

In connection with Special Issue No. 23, which was the damage issue, the court instructed the jury as follows: 'In answering the foregoing Issue, you will take into consideration only the following elements: Physical and mental pain and suffering, if any, which Mrs. Jewel Green has suffered to the time of the trial, and such physical and mental pain and suffering, if any, which Mrs. Jewel 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 probability, be diminished in the future. You will not allow any sum of money for any pain and suffering, loss of earnings, or earning capacity, except those which you find to be directly and proximately caused by the negligence, if any, of the defendant herein.' (Emphasis ours.)

In objecting to the submission of Special Issue No. 23, and in particular as to the explanatory instruction, the appellant stated as part of its objection:

'Defendant objects * * * for the further reason that the evidence raises the issue that a part of plaintiff's mental and physical suffering and disability, if any, is attributable to prior physical infirmities, diseases and nervous conditions, none of which had any connection nor are attributable to the accident in question, and the Court should instruct the jury in connection with Special Issue No. 23, not to consider nor allow anything for physical and mental pain and suffering or loss of earning capacity in the past, because of such previous physical infirmities, diseases and nervous condition, if any, that the plaintiff had, which was not an aggravation by the accident in question; * * *.

'* * * Defendant further objects and excepts to Special Issue No. 23, as written, because it permits the jury to award damages for other pain, suffering, disabilities, infirmities and incapacity to labor, work and earn money, attributable to and caused by previous diseases, infirmities, and nervous and physical conditions, and does not affirmatively relegate and confine the recovery of damages to the extent only that said previous diseases, nervousness and infirmities were aggravated as a result of the injuries sustained in the accident in question.'

Prior to the effective date of Texas Rules of Civil Procedure an objection to the court's charge specific as an objection, was sufficient for a reversal without the further presentation of a formal request to supply an omission of an element of an explanatory instruction to a special issue where such omission was of an element material to a party's action or defense. Speer, Law of Special Issues, secs. 249, 250, 255, 256, and 288. Authority to the effect that objections which sufficiently specify the error will preserve the point on appeal, stemmed from the decision in the case of Gulf, C. & S. F. Ry. Co. v. Conley, 1924, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183. Under this authority, and until the date that Rule 279, T.R.C.P., became effective there would have been no doubt but what appellant would be entitled to maintain error urged in this instance to the explanatory instruction of Special Issue No. 23, which is undoubtedly correct as far as it goes.

Further authority for preservation of error under such circumstances is the case of Dallas Ry. & Terminal Co. v. Ector, 1938, Tex.Com.App., 131 Tex. 505, 116 S.W.2d 683. In that case it appears that the trial court had instructed the jury as to what elements it could consider in a case where there was a dispute between the parties as to the degree prior infirmities contributed to the present incapacity of a plaintiff in a personal injury suit, instructing the jury that it could allow damages for such suffering and disability 'resulting directly and proximately from the injuries' the plaintiff had sustained in the collision with the defendant. The defendant objected substantially as the appellant here objected in the trial court. The Commission of Appeals, speaking through Judge Hickman, pointed out that the defendant was entitled to an affirmative presentation of his defenses (including the defense to compensatory damages for suffering and disability in so far as such was attributable to prior infirmities rather than to the injuries resultant from collision) and that since the special issue itself was an affirmative issue for the plaintiff rather than a defensive issue for the defendant, the defendant was under no duty to request an issue curing a defect in a definition,-and the error was preserved upon appeal by the form of the objection.

It is to be noted that the opinion in the Ector case was shortly prior to the date of the new Rules of Civil Procedure. The law is unchanged unless these rules imposed a greater burden upon a complaining party. It is noted that the Ector case treated the omission complained of as a 'defect'.

Our question is whether under the circumstances the appellant is entitled to preserve the error, if any, upon this appeal. Appellee contends it is not, as not in compliance with Rule 279, T.R.C.P. Our question is not that which would be posed were the words of the court in the explanatory instruction plainly defective, for there is no affirmatively erroneous section or phrase in the instruction which appellant could complain of because the law was incorrectly stated. Neither is our question one which would be posed were there an omission of some ingredient of the appellee's affirmative case necessary to be considered in connection with any finding of fact which the appellant could insist be considered in answering a question which would support a judgment against it. The omitted explanatory instruction desired by appellant was actually an affirmative exclusionary instruction material to the appellant's defense. The appellant was entitled, as a matter of law, to have an affirmative exclusion of such elements of damages, if any, as might have been attributable to prior infirmities, if he properly raised his right thereto.

In his discussion upon the prospective use and effect of the New Rules of Civil Procedure, Judge J. B. Dooley, a member of the Advisory Committee, stated his conclusions as to the effect of Rule 279, T.R.C.P., in words, as follows:

'The rule retains the present practice that a party has no standing for appellate complaint on the ground that the trial court failed to submit an issue material to his cause of action or ground of defense, unless the party requested said issue in substantially proper wording in the trial court, but rightfully qualifies the requirement by adding: 'provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party.'

'The present practice is that a party may save the point by a mere objection to the failure of the court to submit a proper explanation or definition pertinent to some term of technical meaning contained in the trial court's charge. The new rule, changing the practice on that point, will make it necessary for the party who finds any fault with the failure of the court to submit a definition or explanatory instruction to request a substantially correct definition or explanatory instruction as a predicate for any appellate complaint, and as I read it, this requirement holds hood whether the missing definition or explanatory instruction relates to a guestion material to the complaining party's theory of the case or material to the other party's theory of the case.' (Emphasis ours.) 20 T.L.R. 38. See also ...