Insurance Company v. Shearman , 17 Tex. Civ. App. 456 ( 1897 )

It is strenuously insisted in this motion, as well as in another case just submitted, that the Act of the last Legislature amending article 1331, Revised Statutes, so as to cure formal defects in special verdicts, is not applicable to appeals taken and judgments rendered before the act was passed. We have therefore concluded to make a fuller statement of our views upon the question.

That the law, though in terms applying and intended by the Legislature to apply to appeals pending when it was enacted, is not unconstitutional, does not seem to be an open question in this State. At an early day, in the case of De Cordova v. City of Galveston, 4 Tex. 470, the question came before the Supreme Court, upon the construction of a provision of the Constitution of the Republic forbidding the enactment of retrospective laws, as to what, within the meaning of such provision, which is substantially the same as that now found in our Constitution, was a retrospective or retroactive law. After reviewing the decisions construing similar constitutional provisions in other States, Chief Justice Hemphill thus states the conclusion of the court:

"The cases to which reference has been made and the opinions of the courts in expounding this constitutional inhibition will serve to illustrate the intention of the convention in imposing the restriction. Laws are deemed retrospective, and within the constitutional prohibition which by retrospective operation destroy or impair vested rights or rights to do certain actions or possess certain things according to the law of the land; but laws which affect the remedy merely are not within the scope of the inhibition unless the remedy be taken away altogether, or incumbered with conditions that would render it useless or impracticable to pursue it. Or if the provisions regulating the remedy be so unreasonable as to amount to a denial of right, as, for instance, if a statute of limitations applied to existing causes barred already, or did not afford a reasonable period for their prosecution, or if an attempt were made by law, either by implication or expressly, to revive causes of action already barred, such legislation would be restrospective within the intent of the prohibition, and would therefore be wholly inoperative. There can not in the nature of things be a vested right to a remedy which existed at the date of the contract; or, in other words, the mode, times, and manner of prosecuting suits must be left to the regulation of the legislative authority."

This decision is in line with the current of authority everywhere, and is decisive of the constitutional question involved — the law being one which merely regulates the conduct of legal proceedings in the courts. The constitutionality of the law, however, is not so much questioned, as the construction that it is applicable to appeals pending when it was enacted; and the well established rule of construction is invoked, "that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively." But the object of that rule is to avoid retrospective, and hence unconstitutional, or at least objectionable, legislation, the reason of the rule being thus stated in Endlich on Interpretation of Statutes, section 271: "Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation." To the same effect is the following language of Judge Roberts in Martin v. State, 22 Tex. 214: "Even in England, and in our sister States, where there is no express inhibition of retroactive or retrospective laws, the courts will, if possible, construe a law not to have been intended to have such effect, when thereby important rights will be defeated."

As the law, even when applied to pending appeals, is not retroactive within the meaning of the Constitution, we next inquire whether it be unjust to so apply it, that is, whether "important rights will thereby be defeated;" for otherwise the reason and object of the rule of construction invoked would seem to be entirely wanting."

That part of article 1331, Revised Statutes, which was repealed by the amendment in question required the findings of the special verdict to be such as that nothing remained for the court but to draw therefrom the conclusions of law, the effect of which had been to cause many judgments to be reversed on appeal solely because a material fact put in issue by the pleadings, though conclusively proven, had not been specifically found by the special verdict. In the late important case of Silverman v. Gano, 39 Southwestern Reporter, 559, our Supreme Court, speaking through the present Chief Justice, in expressing their disapproval of this rule of practice, used the following language: "The law, in our opinion, is therefore technical, arbitrary, and unreasonable, and calculated rather to obstruct than to promote the administration of justice."

Soon after that opinion was delivered, and evidently in obedience to the suggestion therein made, the Legislature amended the law so as to abolish this unreasonable and unjust rule. The law was made to take effect immediately after its passage, the emergency clause reciting: "The fact that much inconvenience and intolerable delay accrue to litigants in this State, the tendency of which is to prolong litigation and crowd and burden the dockets of the courts," etc.

Concluding, therefore, that it was both within the constitutional power and just purpose of the Legislature to atonce put an end to further "inconvenience and intolerable delay" by repealing a rule of procedure under which litigants were claiming rights, which, so far from being "just" and "important," deserved to fall with the "technical, arbitrary, and unreasonable" rule upon which they depended; we further conclude that the special rule of construction invoked should be discarded as inapplicable, and consequently that the general rule should govern which is thus stated and supported by citation of numerous authorities in Sutherland on Statutory Construction, section 482: "Where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending, and future actions."

The amendment under consideration prescribes but one rule by which we are to dispose of cases on appeal or writ of error, repealing the previous law in toto, without excepting pending cases from the operation of such appeal. It provides a new rule of procedure, without providing for the continuance of the old rule in any case. The general, if not universal, rule of construction in such cases is, that the courts have no power to make exceptions when none have been made by the Legislature. The rule applies also to criminal statutes. Shepard v. State, 1 Texas Appeals 522[1 Tex. Crim. 522], and authorities there cited.

Before the adoption of our present appellate system, certain defects in appeal bonds were held to be incurable, and fatal to the appeal; but in the act providing for the organization of the Courts of Civil Appeals, such courts were authorized to allow such defects, both of form and substance, to be cured by the substitution of new appeal bonds, and this provision of the law has been held to be applicable to appeals which had already been taken to and were then pending in the Supreme Court. Bank v. Bank, 85 Tex. 560.

This is but another illustration of the well settled rule, thus stated by Mr. Sutherland in the section quoted from above: "If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceedings." Following this quotation is a statement of the rule which determines the manner and extent of the application of the new law to pending cases, which is to the effect that, unless an intention to the contrary is plainly manifested, all things done under the repealed law will stand; but our action in the case at bar does not conflict with this rule, since we have disturbed nothing. Indeed, we are forbidden by the new law from disturbing the verdict, in so far as appellant seeks to set it aside upon a ground that has been characterized as "technical, arbitrary, and unreasonable." We thus avoid what the Legislature, in response to judicial suggestion, undertook to prevent — "intolerable delay" and the "tendency to prolong litigation." There was as much reason for preventing further obstruction of justice and "intolerable delay" in pending as in future cases. Any other construction would impute to the Legislature an intention to continue to afflict existing litigants with evils it was easily within their power to prevent without injustice to anyone.

The second contention of the motion is, that in disposing of this appeal we failed to distinguish the defense of generating illuminating gas from that of the use of gasoline, as prohibited in the policy, citing the eighth page of appellant's brief for a statement of facts showing the generation of illuminating gas, which contains the answers of Mrs. M.A. Parish to questions propounded to her by appellant, showing, as we think, merely the method of lighting the lamp containing the French electric fluid, rather than the manufacture or generation of illuminating gas or vapor inhibited by the policy.

The other grounds of the motion are sufficiently covered by the conclusions already filed, and the rehearing is denied.

Rehearing denied.

Writ of error refused.