Pritchett v. Highway Insurance Underwriters , 1957 Tex. App. LEXIS 1996 ( 1957 )

CHADICK, Chief Justice.

When the tentative opinion in this case was prepared, I dissented believing that no reversible error was shown. After further reflection I conclude that error occurred in the submission of Special Issue' No. 28. Originally I was of the opinion that a sufficient objection was not made to the submission of the issue. Counsel for the plaintiff objected in this language:

“Plaintiff objects to the submission of Special Issue No. 28 for the reason that Special Issues Nos. 1 and 2 constitute affirmative submission of the ownership of the truck and trailer in C. M. Pritchett, and only one submission of the question is authorized, and' a dual submission of such issue places an undue burden on Plaintiff,- and there is no evidence that any person other than C. M. Pritchett owns any interest in the truck and trailer in question.”

Undoubtedly the defendant Highway Insurance Underwriters was entitled to an affirmative submission of its defensive issue that Mr. H. M. Brewster owned the truck involved. Such submission would necessarily have resulted in a dual submission because the plaintiff also had the burden of showing ownership of the truck in. order to recover. The issue submitted, though, inquired if Allied Oil Company of Lindale, Texas, owned the truck. The testimony is contradictory as to who does business as Allied Oil Company of Lindale, Texas. Unquestionably, H. M. Brewster so operated at one time and apparently C. M. Pritchett also operated under that name. The issue submitted created confusion and settled nothing. Ordinarily, I would think that an objection to an issue that it placed an undue burden on a party would not be sufficient to point out an error unless coupled with other language pointing out a specific error. However used in the context shown above, it probably was sufficient to point out to opposing counsel and the trial court the vice in the issue.

It is solely on the error of submitting Special Issue 28 that I agree that the judgment denying a recovery under the public liability and property damage terms of Highway Insurance Underwriters’ policy FC-107,430 be reversed and that phase of plaintiff’s case be remanded to the trial court. In all other respects judgment of the trial court is affirmed. Justice FANNING concurs in the disposition as shown by his opinion.

Affirmed in part and in part reversed and remanded.