Harris v. Leslie , 128 Tex. 81 ( 1936 )

Relator seeks to compel by mandamus the Honorable Court of Civil Appeals, 11th Supreme Judicial District, to certify to this Court the following question:

"Where the case was submitted to the jury on special issues and the Appellant, plaintiff in the Court below, timely and properly objected in writing to the Court's charge because of the Court's failure to submit to the jury a material issue, necessary to his recovery of damages and on which there was a conflict of evidence, which objections were overruled by the Trial Court, to which action and ruling of the Court plaintiff excepted; but did not formulate an issue presenting the question and request the Court to submit such issue to the jury; was his objection and exception made as aforesaid sufficient to entitle him to a review by the Appellate Court of the alleged error of the Trial Court in failing to submit said issue?"

The case before the Court of Civil Appeals out of which the question arose is Harris v. Thornton Department Store, 94 S.W.2d 849. The opinion of the Court of Civil Appeals freely admits the conflict of decisions on the question, but follows the opinion of this Court in Gulf, C. S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561; 32 A. L. R., 1183. This Court, as recently stated in Aetna Life Ins. Co. v. Gallagher,127 Tex. 553, 94 S.W.2d 410, will not require the certification of a question which it has already decided, unless the decision of the Court of Civil Appeals on that decision is contrary to the Supreme Court's decision thereon. The decision of the Court of Civil Appeals being in harmony with the decision of this Court in the Conley case, supra, the motion for leave to file will be denied.

Opinion delivered July 22, 1936.