McFaddin v. Hebert

WALKER, Chief Justice.

For the opinion of this court on a former appeal, reversing and remanding this case for a new trial with instructions to submit only issue No. 1 of the court’s charge, see McFaddin v. Hebert, 32 S.W.(2d) 914; for the opinion of the Supreme Court, answering our certified questions, and upon which we based our judgment of reversal and remand, see McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, and for the opinion of the Supreme Court on writ of error against our judgment of reversal and remand with instructions see McFaddin v. Hebert, 44 S.W.(2d) 938.

For a full, clear, and satisfactory-statement of the nature of this case we refer to and adopt, without bringing it forward in this opinion, the statement made by Judge Sharp in his opinion, McFaddin v. Hebert (Tex.Com.App.) 44 S.W.(2d) 938. Issue No. 1 set out in Judge Sharp’s opinion reading as follows:

“Special Issue No. 1: ‘Did James In-galls, in making the survey of the E. L. Moore and other connecting surveys go to the northwest corner of the John McGaf-fey League, as called for in his field notes of the Moore Survey, or did he not?’

“You will answer ‘Yes’ or ‘No’ as you find the facts to be, ”

was again submitted on this trial and again answered in the affirmative. Many other questions were also submitted to the jury, but the affirmative answer to question No. I is sufficient to support the judgment of the lower court awarding appellees all the land in controversy. Our reasons for this construction of issue No. 1 were given by us on the former appeal, and brought forward by Judge Sharp in his opinion cited above.

We overrule appellants’ assignment that the evidence was insufficient to raise issue No. 1 and that the jury’s answer was against the overwhelming weight and preponderance of the testimony. That very assignment was before us on the former appeal and was overruled. The evidence on this appeal is substantially the same as on the former appeal.

We sustain appellants’ exception to special issue No. 1, that it “ * * * in no manner advises the jury as to the burden of proof and in view of the' fact that the burden of proof is upon the plaintiff to establish his cause of action, said issue as framed is prejudicial to the defendants.”

In Texas Employers’ Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.(2d) 658, 659, the Supreme Court had before it the following issue: “Do you find from the evidence that the defendant O. O. Lemons sustained accidental injuries on or about the 1st day of November, 1928? Answer this question ‘Yes’ or ‘No.’”

Writing the opinion, Judge Critz said:

“We are of the opinion that the charge was erroneous in the particular indicated. Section 5 of article-8307, R.C.S.1925; Psi-menos v. Huntley (Tex.Civ.App.) 47 S.W. (2d) 622. * * *

“The right of a litigant to have the jury properly instructed on the burden of proof is a valuable one. Psimenos v. Huntley, supra, and authorities there cited. In fact, this proposition of law is' too well settled to require the citation of authorities. It must follow that, unless it can be said that this charge properly indicated to the jury on whom rested the burden of proof, it was erroneous, and a reversal must result.

“A reading of the above question clearly discloses that it is so worded and constructed as to fail utterly to indicate within itself any burden of proof whatever. It simply asks the jury, ‘Do you find from the evidence * * * ? ’ It in- no manner tells the jury that a ‘yes’ answer requires such preponderance.

“When the question is considered in the light of the above-quoted preliminary instruction on burden of proof, the error becomes the more evident. In such preliminary instruction the jury were told in substance to answer all questions ‘from a preponderance of the evidence.’ To our mind such instruction could mean nothing more and nothing less than that all answers must be supported by a preponderance of the evidence. Certainly a jury of laymen would be liable to so understand it. Under such instruction the jury might well understand that, in order to answer such question ‘yes,’ they would have to find the preponderance of the evidence that way. On the other hand, the jury might just as well understand that, in order to answer such question ‘no,’ they would have to- find the preponderance of the evidence that way. It goes without saying that a charge so constructed was and is erroneous, because the association was entitled to have 'the jury clearly understand that, unless the preponderance of the evidence supported a ‘yes’ answer, the question should be answered ‘no.’ ”

The Lemons Case was decided long after we handed down our opinion on the former appeal of this case and, of course, is the law on the form and manner of submitting' special issues.

Appellants have assignments against the form of questions 2, 3, and 4, and also that they were not raised by the evidence. As these questions were evi-dentiary in their nature and submitted no controlling issues to the jury, these assignments become immaterial.

Appellants also complain that the court erred in refusing to submit certain defensive issues. These assignments are overruled because the issues brought forward submitted only matters of evidence.

Our fact conclusions upon the correct location of the southwest corner of the Dennis Gahagan survey and the southeast corner of the McGaffey labor and the location of the D. Burrell survey immediately west of the McGaffey labor take out of the case appellants’ propositions that ap-pellees were estopped to dispute these locations.

The trial court submitted twenty-six special issues requested by appellants, beginning each issue as follows: “Defendants’ Special Issue No. -,” followed by the number of the issue. Appellants complain of this manner of submission, for the reason that the issues “informed the jury more or less accurately of the effect of their answers to said issues and their bearing upon the claims or contentions of the party requesting them; and such action on the part of the trial court is particularly erroneous when the party requesting the submission of such special issues also requests that they be submitted as a part of the court’s main charge and not set apart and designated as issues requested by the party himself.” This contention is overruled. It is certainly one that appellants cannot make. They prepared the questions, and if, by their form, the jury was advised of the effect of their answers, the fault was appellants’. However, the .practice of making all questions submitted to the jury part of the general charge is to be commended.

Appellants present many assignments against the argument of counsel for ap-pellees and misconduct of the jury which can be obviated upon another trial.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.