Weisiger v. Chisholm , 22 Tex. 670 ( 1859 )

Wheeler, Ch. J.

There appears to be error in the judgment, in the refusal of the third instruction asked by the plaintiff. It contained the law especially applicable to the evidence, and its refusal, unless it had been given' substantially in the charge of the court, was error, for which the judgment must be reversed. But no instruction appears by the record to have been given by the court. It is said, however, by counsel, that instructions were given, which are lost; and it is insisted, that in their absence we must presume the law was properly given in charge to the jury. This, undoubtedly, is the presumption which must generally be indulged. If it did not appear that instructions, quite unexceptionable, and peculiarly proper to have been given, had been refused; or if it clearly appeared, that the right of the case had been attained by the verdict; we might think ourselves warranted in resting an affirmance of the judgment, upon the presumption, that the charge of the court embraced a correct exposition of the whole law of the case, although instructions were refused which might properly have been given. But where there seems to be cause to doubt the correctness of the verdict, upon the evidence, and an instruction so proper to have been given was refused, we think we ought to hesitate to affirm the judgment, notwithstanding the apparent error, upon the mere presumption of the correctness and completeness of a charge of the court, which we have not the opportunity to revise; especially when, if the error in refusing instructions, was not corrected by the charge, the injury to the appellant may be irreparable.

We do not mean to intimate an opinion upon the merits of the case. The jury were the judges of the credibility of the witnesses, and their finding may be in accordance with the right and justice of the case. But this does not appear so manifestly, upon the evidence, as to relieve the case of doubt. Proper instructions wore refused the appellant. Without any fault of his, he is deprived of the opportunity of having the charge of the court revised; and this court are deprived of the opportunity of being satisfied that the apparent error, in refusing instructions, was corrected by the charge. Upon the whole, in view of the character of the evidence, and the circumstances of the case, we think it safer to reverse and remand the case for a new trial, than to rest an affirmance of the judgment upon the mere presumption of its correctness when, upon the record as presented for revision, there is manifest error apparent. If the judgment is correct, its reversal- will operate an inconvenience only to the appellee, as we must suppose the same result will be attained upon another trial. If it is erroneous, its affirmance might operate an irreparable injury to the appellant.

We are of opinion that the judgment be reversed, and the cause remanded for a new trial, in which the law and right of the case may be more certainly attained.,

Reversed and remanded.