Commercial Standard Insurance Co. v. Allred

ON MOTION FOR REHEARING

MASSEY, Chief Justice.

We are cited to Texas Employers’ Insurance Ass’n v. Rowell, 104 S.W.2d 613 (Eastland Civ.App.1937, no writ) the material special issue in which the plaintiff states was expressly approved in Eubanks v. Texas Employers’ Insurance Ass’n, 151 Tex. 67, 246 S.W.2d 467 (1952). In the Rowell case the special issue, which was approved, read as follows: “Do you find from a preponderance of the evidence that the plaintiff, H. Rowell, on or about the 10th day of August, 1934, sustained an injury as .that term is herein defined, as a result of a heat exhaustion or sunstroke ?”

We are in accord with the Rowell case opinion in which it was held that the issue was not subject to the objection that it was on the weight of the evidence as assuming that the plaintiff had suffered an attack of heat exhaustion or sunstroke, a matter in dispute. We are also in accord with its holding that the words of the special issue “as a result of a heat exhaustion or sunstroke” are words used in limitation, description or modification of the issue. In other words we agree that the words in the issue imposed a more onerous burden upon Rowell than is the usual requirement of law rather than to lessen the burden he was obliged to carry as the result of constituting a comment on the weight of the evidence on the part of the court in an indication that there actually had been a heat exhaustion or sunstroke.

The test to be made in each case is whether the language which is contended to be duplicitous or multifarious is, under the circumstances, a limitation, description or modification of the question made an issue to be resolved by the jury’s answer. In the instant case we see no difference in the issue submitted than would have been the case if it had read: “Do you find from a preponderance of the evidence that Leroy Allred sustained an injury to his body as the result of the heat exhaustion which oc-cured on or about April 9 1963?” (Emphasis supplied to words interpolated and added.)

If we are correct in this it is obvious that the charge was on the weight of the evidence, since the language of the issue would be duplicitous or multifarious as not a limitation, description or modification of the issue upon heat exhaustion (an injury in itself). We believe the words inserted, emphasized by italics, were the kind of words interpolated into the issue which was condemned in Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353 (Tex.Sup.,1947), an opinion which came ten years after that in Rowell and of which the Supreme Court was cognizant at the time of Eubanks. If we are correct in this we are correct in the decision we have made in this case.

Motions for Rehearing are overruled.