International & G. N. Ry. Co. v. Bartek

Being unable to concur with his Associates in the conclusion that the judgment in this case should be affirmed, it becomes the writer's duty to state the reasons for his dissent. It is correctly held by the majority opinion that the charge of the court, in placing the burden of proof on the defendant to show that it was not guilty of negligence, was erroneous, and that appellant's special charge, placing that burden upon the plaintiff, should have been given although Mr. Justice Jenkins expressed his individual view to the contrary. Railway Co. v. Thomas,132 S.W. 974, and authorities there cited. The following quotation from the opinion in that case is not inappropriate:

"If the plaintiff had merely charged in his petition that the defendant was guilty of negligence in permitting the two trains in question to collide, and that the plaintiff was unable to allege and prove the particular act or omission which constituted the defendant's negligence, the court's charge, and its ruling in refusing the requested instruction directing a verdict for the defendant, would have been, correct. But, inasmuch as the plaintiff saw proper to enter into details and specify particular acts or omissions as constituting the defendant's negligence, then by so doing he waived his right * * * to rely upon the doctrine of res ipsa loquitur, applicable to cases of this class. The rule on this subject is well stated in the following excerpt from the opinion of the court in Gibler v. Railway Co. [148 Mo. App. 475], 128 S.W. 791, above cited:

"``We do not hesitate to express the opinion, as was done on the former appeal, that the doctrine referred to might have been invoked by plaintiff had he relied solely upon a general charge of negligence against defendant, for it seems that the uncoupling of a freight train in the circumstances stated, while running over the tracks at * * * 20 or 25 miles an hour, is such an unusual and extraordinary occurrence as to bespeak the want of due care on the part of the defendant in some respect or somewhere. It may be the negligence was in the operation of the locomotives, or it may be in the construction or defective condition of the couplings, or it may lie in the defective condition of the roadbed; but, though the fact in and of itself indicates negligence, no one can say that it points to the engineer as the negligent party. As suggested, the fact may point negligence, but what particular negligence it indicates is another question. The plaintiff in his petition points to the negligent acts of the engineer as those upon which he relies for a recovery, and fails to give any proof to sustain the charge. It is clear enough that, although the fact of the accident bespeaks negligence, no one can say that of itself it indicates or tends to prove negligence in the engineer any more than it tends to prove negligence in the condition or construction of the couplings.

"``The general rule obtains to the effect that the specific acts of negligence pleaded and relied on for recovery must be proved. Waldhier v. H. S. J. R. R. Co., 71 Mo. 514; Price v. St. Louis, etc., Ry.,72 Mo. 414; Bunyon v. Citizens' Ry., 127 Mo. 12,29 S.W. 842; Ely v. St. Louis, etc., Ry., 77 Mo. 34; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062, 8 L.R.A. (N. S.) 929; Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S.W. 52. In proper cases, when the allegation of negligence is general in character only and unaccompanied by a recital of the specific acts which go to the breach of duty relied upon, the doctrine of res ipsa loquitur may be invoked. The rule permitting a presumption of negligence to suffice for plaintiff proceeds on the theory that it is easily within the means of defendant to show there was no dereliction on his part, if such be the fact, while the plaintiff would labor under a great disadvantage if the burden to show the particular acts of negligence continued with him. Roscoe v. Met. St. Ry. Co., 202 Mo. 576, 101 S.W. 32; Orcutt v. Century Bldg. Co., supra; Feary v. Met. St. Ry. Co., 162 Mo. 75, 62 S.W. 452: Malloy v. St. Louis S. R. Co., 173 Mo. 75, 73 S.W. 159: Gilber v. Q. O. K. Ry. Co., 129 Mo. App. 93, 107 S.W. 1021; Briscoe v. Met. Street Ry. Co., 222 Mo. 104, 120 S.W. 1162.'"

But this court in the majority opinion holds that, inasmuch as appellant failed to make a specific objection to the court's charge on the burden of proof, and failed to except to the action of the court in overruling such objection, it is now precluded from complaining of that charge and the action of the court in refusing to give the requested instruction placing the burden of proof upon the plaintiff, although a bill of exception was reserved to such refusal. In that ruling this court follows the case of Railway Co. v. Barnes, 168 S.W. 992, decided by the Ft. Worth Court of Civil Appeals. The case cited construes articles 1971, 1973, 1974, and 2061 of the Revised Statutes as amended by the Legislature in 1913 (Acts 33d Leg. c. 59 [Vernon's Sayles' Ann.Civ.St. 1914, arts. 1971, 1973, 1974, 2061]). It is true that article 1971 which requires the judge to submit his charge to the attorneys for inspection and allow a reasonable time for objection thereto, does prescribe that all objections not made to the charge before it is read to the jury shall be considered as waived; and article 2061 declares that rulings of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to; and, in view of these provisions, it was held in the case cited that an appellant who had not brought up a bill of exception showing that he had made timely objection to the action of the court in submitting the case to the jury in his charge was precluded from complaining of the action of the court in refusing to give a peremptory instruction directing a verdict for the appellant, and the reason for so holding was stated as follows:

"If, as provided by the amended statutes, a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them. And according to a wellestablished rule of decisions in force before the enactment of that statute, if a party requests two different instructions upon the same issue, and one of them is given, he cannot complain of the refusal of the other. The evident purpose of the act referred to was to require the trial judge to be given the full benefit of any objections to his charge to the jury that might be urged upon appeal, to the end that the charge as finally submitted to the jury may be so framed as to avoid such objections."

The majority of this court approves that decision, but the writer does not. Generally speaking, the rule there announced may be correct; but it was not applicable to that, nor is it applicable to this, case. The purpose of the Legislature in prescribing that all objections not made before the charge is read to the jury shall be considered as waived, and that the action of the court in giving, refusing, or qualifying instructions shall be regarded as approved unless excepted to, was to prevent the reversal of cases for errors which might have been corrected by the trial court if such errors had been pointed out in that court. As the law existed prior to that time, an appellant was not required to complain of the action of the court in giving or refusing instructions, either at the time of the trial or in his motion for new trial, but could make such complaint for the first time in his assignments of error, which he was not required to file until after the court adjourned. The result was that many cases were reversed on account of errors which probably would have been corrected in the trial court if the error had been pointed out in that court; and no doubt the purpose of the amendment was to prevent that evil and thereby diminish grounds for appeals and reversals. In order to accomplish that wise purpose, the amendment requires the dissatisfied litigant to bring up a record which will show that he objected to the action of the trial court in giving, refusing, or qualifying an instruction and reserved an exception to the action of that court in not sustaining his contention. In the opinion of the writer that is the spirit and meaning of the amendments referred to, and it is believed that appellant has substantially complied with the statute as thus amended.

Appellant has assigned error upon the court's charge instructing the jury that the burden of proof was upon appellant, and upon the refusal to give a special charge asked by appellant, instructing the jury directly to the contrary, and stating that the burden of proof was upon the plaintiff to show by preponderance of the evidence that the wreck in question was caused by one or more of the acts of negligence set out in the plaintiff's petition. As those two assignments relate to the same question of law, counsel for appellant have very properly presented them together in their brief and under them submit the proposition, which this court holds to be correct, which, in substance, is that when a passenger sues to recover damages caused by the derailment of a train, and pleads specific acts of negligence, the burden rests upon him upon the issue of negligence so pleaded. But a majority of this court, following a decision made by two of the members of the Ft. Worth Court of Civil Appeals (one judge being absent) holds that appellant must he held to have acquiesced in the court's charge upon the burden of proof, because it has not brought up another bill of exception showing specifically that it objected to that part of the court's charge and reserved an exception to the action of the court in overruling that objection. That holding is based upon a construction of the statute which, in my opinion, is entirely too narrow and technical. As before said, the purpose of the amendment was to prevent objections being made on appeal to the action of the trial court in giving or refusing instructions to the jury, when such objection was not made at a time when it could have been considered by the trial court. Now it seems to me to be illogical to hold that, while appellant has reserved a bill of exception to the action of the trial court in refusing to instruct the jury that the burden of proof was upon the plaintiff, nevertheless he must be held to have approved the action of the court in charging the jury exactly to the contrary. It would seem to be illogical, if not absurd, to say that, when one is complaining because a certain thing was not done, he is at the same time consenting to what was done when that was the very reverse of what he contends should have been done; and it is not believed that the statute in question was intended to produce any such result. Appellant's request to have the jury instructed that the burden of proof was upon the plaintiff, and its exception to the action of the trial court in refusing to do so, must necessarily have apprised that court of the fact that appellant challenged the correctness of the court's charge upon the burden of proof. If the requested instruction, to the refusal of which appellant excepted, had been given, the trial court would have been compelled to omit or change its charge upon the burden of proof; otherwise it would have been placed in the attitude of giving charges that were diametrically opposed to each other, a contingency not to be supposed. As to the burden of proof, there was but one question for the trial court to consider, viz., did the law place it upon the plaintiff or the defendant? That court held that the law placed it upon the defendant, and the bill of exception shows that the defendant objected to that ruling, because it reserved an exception to the action of the court in refusing to give a charge which would have placed the burden of proof upon the plaintiff. Hence the writer concludes that, in as much as appellant is properly complaining of the action of the court in refusing to give its requested instruction upon the burden of proof, which instruction is directly the converse of that given by the court, it should be held by this court that the act of appellant in requesting the refused instruction constituted a sufficient objection to the court's charge upon that subject, and the case should be reversed because of the error in the court's charge, and the refusal to give the requested instruction.

In Cleburne Street Ry. Co. v. Barnes, supra, an application for writ of error was made to and refused by the Supreme Court; but the writer of this opinion has examined that application and finds that it did not present the question above discussed. With due respect to his Associates and the Ft. Worth Court of Civil Appeals, this writer believes that in the construction they have placed upon the statute they have given too much effect to literalism and not enough to that general rule of statutory construction prescribed in the final title of the revised statutes of this state to the effect that statutes are to be liberally construed with a view to accomplishing the legislative purpose and promoting the ends of justice, which rule was applied by our Supreme Court in Land Co. v. McClelland Bros., 86 Tex. 179, 23 S.W. 576, 22 L.R.A. 105, where it is said:

"It is to be borne in mind that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions. It is certain that it was never intended to hedge either the Court of Civil Appeals or the Supreme Court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts."

But it is stated in the majority opinion that, if the assignments complaining about the charge upon the burden of proof had been considered, the case would not have been reversed, because of rule 62a (149 S.W. x), and the fact that evidence was submitted which would sustain a finding of negligence against appellant, and therefore it is not believed that a different verdict would probably be rendered upon another trial; for which reason it is held in the majority opinion that the error as to the burden of proof was not calculated to cause, and probably did not cause, the rendition of an improper judgment. The writer has given that branch of the case much consideration, and deems it proper to say that the testimony bearing upon the question of negligence as charged against appellant was not such as would have justified the trial court in directing a verdict for the plaintiff If it be conceded that, under a charge placing the burden of proof upon the plaintiff, the evidence brought up in the record would justify a finding against the defendant upon the question of negligence, nevertheless it is not of that convincing character which leaves no room for honest difference of opinion, and a plausible argument could be made on the other side of that question. Therefore if the verdict had been in favor of the defendant, I apprehend this court would not have set it aside as being unsupported by testimony. This being the state of the record, it does not seem to me that this court ought to dispose of the appeal upon the assumption that another jury, when properly instructed as to the burden of proof, would and should find that the defendant was guilty of negligence. Negligence is a question of fact, and appellant has the right to have that question of fact decided by a jury, aided by proper instruction as to the law. The right of trial by jury is guaranteed by the Constitution. If that right has been impaired by an improper instruction of the trial court, the only adequate remedy would seem to be another jury trial under proper instructions; and that remedy ought not to be denied because an appellate court may entertain the belief that another trial would not probably result in a different verdict, unless the testimony would have justified the trial court in directing a verdict for the party in whose favor the jury found.

While there may be expressions in a few cases tending to the contrary, there is a long line of decisions by our Supreme Court holding that where the trial court has committed a material error, calculated to injure the complaining litigant, the judgment should be reversed, unless it is made to appear that no injury in fact resulted. In Bailey v.

Mills, 27 Tex. 438, the Supreme Court said: "It is the practice of this court to reverse a judgment whenever there is an erroneous instruction upon a material point which may have influenced the jury in finding the verdict, although the evidence may appear to us to be sufficient to sustain the verdict; and the reason of the rule is that it is impossible to know what effect the instruction had upon the minds of the jury, how much the verdict is due to the instruction, and how much to the evidence; and in a case of conflicting evidence it is impossible to know that it would lead the minds of the jury to the same conclusion as the minds of this court."

And in G., C. S. F. Railway Co. v. Johnson, 91 Tex. 572,44 S.W. 1067, the same court, speaking through Mr. Justice Brown, who is now its Chief Justice, said:

"The charge being erroneous, it is presumed to have been injurious to the interests of the defendant, and ``in such case the duty does not devolve upon the party complaining to show that he was thereby injured, but upon him in whose favor the verdict was returned, to show that the complaining party was not prejudiced by the error.' G., C. S. F. Ry. Co. v. Greenlee, 62 Tex. 349; Emerson v. Mills, 83 Tex. 388 [18 S.W. 805]. * * *

"When a positive error has been committed, the court cannot enter into speculation as to what conclusions the jury may have arrived at, in order to avoid the force and effect of such error upon a verdict, and more especially is this true in a case like the present, where the law in a large measure commits to the common sense and sound discretion of the jury the amount to be assessed. But in such a case the rule laid down in the cases above cited must be enforced, and if it does not appear from the record that the error was harmless, the judgment based upon such error must be reversed."

But it is believed by some members of the bench and bar (Wells Fargo Co. v. Benjamin, 165 S.W. 120) that the wise and just rule referred to has been abolished by rule 62a, which was adopted by the Supreme Court in 1912, and which reads as follows:

"62a. No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error. Provided, if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the court of civil appeals shall proceed as if such erroneous action or failure to act had not occurred."

Apparently, there is a conflict between the decisions rendered by the Supreme Court and the first part of the rule above quoted adopted by the same court. The former had established the doctrine that when it was shown that material error had been committed in the trial of the case, which was calculated to prejudice the rights of the complaining litigant, the judgment should be reversed, unless it was also made to appear that such litigant did not in fact sustain injury as a result of the error, while the latter prescribes that the case shall not be reversed unless it appears that the error was reasonably calculated to and probably did cause the rendition of an improper judgment. In writing the first few lines of that rule, the Supreme Court followed the law as it was well established by its own decisions; but, when it inserted the words "and probably did," it seems to have made a rule which, if construed literally, is in conflict with and overrules many of its former decisions, including the one written by Chief Justice Brown in the Johnson Case. Section 25 of article 5 of the Constitution confers upon the Supreme Court "power to make and establish rules of procedure, not inconsistent with the laws of the state, for the government of said court and the other courts of this state, to expedite the dispatch of business therein." The power there conferred is not the unlimited power which that court may exercise in deciding cases to declare and promulgate rules of law by which the rights of litigants are to be determined, but the power therein conferred is limited to the making of rules of procedure, not inconsistent with the laws of the state, and for the purpose of expediting the dispatch of business in the courts. Under the provisions of the Constitution referred to, and from which that court derives its power to make rules, it may be seriously questioned if the Supreme Court has the power, when acting alone under that provision, to establish a rule of law prescribing when the Courts of Civil Appeals may affirm or when they may reverse cases; and for that reason, and for reasons hereafter given, I prefer to adhere to the law as declared by that court in concrete cases, rather than that seemingly established and promulgated by rule 62a. Whatever will aid a Court of Civil Appeals in reaching a final decision will expedite the business of the court, but the character of judgment which it may decide to render can have no bearing whatever upon the dispatch of business. All the cases upon the dockets of those courts could be reversed as expeditiously as they could be affirmed, and therefore it would seem that a rule directing when a case should be affirmed or reversed should not be denominated a rule for the purpose of expediting the dispatch of business. I make no point upon the fact that the Constitution expressly denies to the Supreme Court the power to make rules "inconsistent with the laws of the state," for the reason that the word "laws," as there used, perhaps has reference to those laws embodied in the Constitution and statutes; but, in view of that provision, I apprehend that the Supreme Court would hesitate long before it would intentionally adopt a rule, the effect of which would be to overrule its own decisions and change a well-established principle of substantive law.

If it is to be the established law in this state that no case is to be reversed, although the complaining party may show that material error was committed at the trial, which error was calculated to injure him, unless it is also made to appear that in fact injury did result, then gross injustice will be done in many cases, for the reason that it will be impossible for the complaining litigant to show what effect the error complained of had upon the minds of the judge or jurors who decided his case. If it were practical to do so, the law provides no means by which the complaining party can show to an appellate court the precise effect which an erroneous charge had on the minds of the jury; and it is for that reason that our own Supreme Court, and perhaps all other appellate courts, have declared and applied the wise and just rule, to the effect that when it is made to appear that material error was committed, which was calculated to prejudice the rights of the complaining litigant, the judgment should be reversed, unless it is shown that it did not have that effect. Furthermore, while rule 62a was made for the government of the Courts of Civil Appeals, when a case is carried to the Supreme Court, the rule should have as much application in that court as in the Courts of Civil Appeals; but the latter court, in disposing of the case of Scott v. Townsend, 166 S.W. 1138, decided nearly two years after rule 62a was promulgated, did not depart from its former decisions on account of rule 62a, but reversed the case because the trial court had permitted improper testimony to go to the jury. In that case a daughter by a former wife was contesting the probate of a will executed by her father upon allegations that its execution was procured by undue influence exercised by the second wife, who was the stepmother of the contesting daughter. The decision of the case by the Court of Civil Appeals is reported in Scott v. Townsend, 159 S.W. 342; and, after holding that the testimony complained of was admissible, that court, in effect, held that if it was in error in that holding, still, under rule 62a, the judgment should not be reversed, because there was nothing in the record to indicate that the jury had been improperly influenced by the testimony complained of. In other words, the Court of Civil Appeals seems to have held that as it was not made to appear that the testimony referred to probably caused the jury to return an improper verdict in favor of the contestant, under rule 62a the case should not be reversed. A reading of the opinions of the Court of Civil Appeals and of the Supreme Court in that case indicates that there was sufficient testimony, outside of that held by the Supreme Court to be inadmissible, to support the verdict of the jury in finding for the contestant, and therefore no appellate judge could know or properly say that if the objectionable testimony had been excluded the verdict would probably have been different, and yet the literal reading of rule 62a seems to declare that the case should not have been reversed, unless the appellate court was prepared to so hold, and the Court of Civil Appeals seems to have so construed and applied that rule. But, when the Supreme Court dealt with the case, nowhere throughout its elaborate and interesting opinion was rule 62a mentioned; and, after holding that some of the testimony complained of was not admissible, that court, speaking through Mr. Justice Phillips, said:

"That this incompetent testimony was likewise prejudicial to the plaintiffs in error is, in our opinion, not open to question. It afforded direct proof, through a statement made by the testator himself, of one of the most important features of the issue in the case. The theory of the contestant being that the exertion of undue influence by the testator's wife produced the will, proof of effort on her part to have him make it necessarily supplied a strongly persuasive circumstance in support of that position. It was as cogent a fact as could be produced to establish the exertion of the alleged influence, since under the issue it was subject to be construed, both as an attempt to practice it, and as expressly marking its direction towards the object of its alleged exercise. Incompetent testimony of such force and capable of such effect under this issue cannot, in our judgment, be treated as harmless. A legal trial is as important as a correct result. We have no disposition to lightly reverse the action of a trial court. Without any tendency to emphasize errors that are immaterial, its judgment should be accorded the presumptions the law imparts to it. But the rules of law, by whose observance only can rights be legally determined, are entitled to the same deference, and have an equal claim upon the conscience of a court. * * * On account of the erroneous admission of the testimony we have indicated, the judgments of the district court and the honorable Court of Civil Appeals are reversed, and the cause remanded."

So, it appears in that case that the Supreme Court, in effect, followed its former decisions, which indicates that it did not intend that rule 62a should have the effect of overruling those decisions.

The decision of the Supreme Court in Scott v. Townsend, supra, is the last utterance of that court upon the subject, and, for that reason, and because it applies a principle of law based upon right and justice, and because it is difficult to believe that it was the intention of the Supreme Court, in adopting rule 62a, to overrule its decision in Railway v. Johnson, supra, and the long line of cases back of that case, I am not willing to depart from the wise rule announced and applied in those cases. No case should be reversed on account of technical or immaterial errór; but when it is shown that material error has been committed, calculated to prejudice the rights of the complaining litigant, and when it is not made to appear that such error did not have an injurious effect, then the case should be reversed; and, in my judgment, the instant case belongs in that category.

The decision rendered by the majority of this court is in direct conflict with the decision of the Supreme Court in Dwyer v. Continental Ins. Co., 57 Tex. 181, upon identically the same question. In that case, Dwyer, as assignee of A. M. White, sued upon a policy of fire insurance. The defendant charged that White, the owner of the property, had caused it to be burned; and the court instructed the jury that the burden of proof rested upon the plaintiff upon that issue. In reversing the case the Supreme Court, speaking through Mr. Justice Stayton, said:

"The court in effect instructed the jury that they must find for the defendant unless the plaintiff produced a preponderance of evidence to show that the insured property was not burned by A. M. White or his procurement. This was error, unless the presumption is that the owner of insured property burns, or causes property to be burned, whenever it is lost by fire. There is no such presumption, but the contrary presumption does exist. It is contended that the preponderance of evidence is so greatly in favor of the proposition that the insured property was burned by White or his agency, that the judgment should not be revised, even if the court did err in giving and refusing the charges above referred to. We are not authorized to nicely weigh the evidence, and to dispose of the case as the jury might have done under proper instructions. The appellant was entitled to have the jury pass upon the evidence under a proper charge."

Believing that the law as announced and applied in that and many other cases decided by the Supreme Court is sound and correct, I am not willing to hold that that and the other cases referred to have been overruled by rule 62a, until the Supreme Court, in an opinion rendered in the decision of a case, shall so declare. I concur with Mr. Justice PHILLIPS that "a legal trial is as important as a correct result," and with Mr. Justice STAYTON that "the appellant was entitled to have the jury pass upon the evidence under a proper charge."