DocketNumber: No. 1971.
Citation Numbers: 138 S.W.2d 254
Judges: GRISSOM, Justice.
Filed Date: 3/1/1940
Status: Precedential
Modified Date: 1/12/2023
Negligence of the defendant was by the verdict of the jury found to have been a proximate cause of injuries to Mrs. Lovejoy. The verdict, insofar as its subject matter consisted of the issues which plaintiff had the burden of establishing, contained no description of the injuries. In other words, the particular nature and extent of the injuries do not appear from that part of the verdict.
In addition to the issues which plaintiff had the burden of establishing there were others, one being whether "the physical suffering, if any, that Mrs. Lovejoy has had since October 6, 1934, is due solely to a diseased condition of her body that is in no way connected with the swallowing, if any, of particles of glass." This issue particularized, wholly or partially, the "injuries" which by other portions of the verdict were found to have been proximately caused by negligence of defendant. The finding that Mrs. Lovejoy's physical suffering after swallowing the glass was not due solely to a diseased condition of her body must be regarded as tantamount to a finding that her "injuries" as referred to in the other issues were not due solely to disease. If her "injuries" were not due solely to disease, in no way connected with swallowing the glass, but, as otherwise found, were due to (caused by) swallowing the glass, then what, if any, part of the total consequences of swallowing the glass should be excluded from the total amount to be awarded as damages? There was no evidence of any items of damages resulting from swallowing glass as to which the law does not permit recovery. There was, therefore, nothing to be excluded either in the statement of the special issue or instruction accompanying it.
The principle sought to be applied is not believed to be applicable to the state of facts presented. That principle relates to cases wherein after it is determined that injuries have resulted from negligence as the proximate cause thereof the law will not permit recovery of compensation for some of the results of such injuries. Good examples are death actions in which the policy of the law forbids recovery of damages for mental *Page 265
grief, or suffering, or loss of society, affection or companionship, although they result from the very injury for which the recovery of damages is awarded. Such are the cases of St. Louis S. F. T. Ry. Co. v. Houze, Tex. Civ. App.
The principle has also been applied in a few cases where the injuries, the damages from which are sought to be recovered, are but a part or phase of certain indisputably existing injuries as to which there is no issue, or as to which because of some policy of the law there exists no right of action. Examples of such cases are Times Pub. Co. v. Ray, Tex. Civ. App.
If although as a whole the injuries were not due solely to pre-existing disease, but as to some ascertainable and definite part thereof, they were due solely to disease (and, therefore, not to swallowing glass) that was, under the decisions, a defensive issue. It was not submitted and not requested to be submitted. It was an issue analogous to the defensive issue of partial, or of temporary, incapacity in a suit by which plaintiff seeks to recover compensation for total and permanent incapacity. There can be no difference in principle between a defensive matter which constitutes a complete defense and a defensive matter which constitutes a pro tanto defense, or, in other words, defense to a definite part of an asserted cause of action or claim to damages. Surely no higher authority for this proposition need be mentioned than those decisions holding that issues of partial incapacity and issues of temporary incapacity as defensive issues are required to be given.
The writer cannot believe the decision in Dallas Ry. T. Co. v. Ector,
In the Ector case it was said: "* * * the difference in the form of submission cannot be made to alter the rights of the defendant to have an affirmative exclusion of improper elements" (of damage). This was said in reference to two different forms of submitting the issue of damages — one said to be the usual way, and the other, the preferable way, (the one employed). Attention has already been directed to the self-evident proposition that by the preferable way the necessity of giving a charge or instruction *Page 267 "in connection with" or in addition to, the statement of the issue, would be obviated. The right of review would be fully preserved, to correct any error in the statement of the issue when the court having his attention directed thereto by proper objection had failed to make such correction. Apparently, the view was expressed that although the issue of (the amount of) damages was improperly stated, and had it been properly stated there would have been no necessity for giving in connection with the issue a charge or instruction, and although no objection was made to the improper statement of the issue, but only to the omission of the court to give the charge or instruction, yet nevertheless the court erred because the defendant had a right "to have an affirmative exclusion of improper elements." Did the court mean to say, in effect, that the right mentioned was not subject to waiver because of non-compliance with the law governing procedure? It seems that upon this point there is internal evidence of inadvertence and mistake. The issue submitted did notcontain the word "damages." It was expressly declared that the only authority for giving a charge or instruction was the authority to give explanations and definitions of legal terms. What legal term was being defined or explained by the charge in question? It would seem utterly unreasonable to impute the intention of the court to declare that the duty of the trial court in submitting a cause upon special issues to give such explanations and definitions of legal terms as "shall be necessary to enable the jury to properly pass upon and render a verdict on such issues" would authorize the giving of a charge or instruction when no legal term was used in the statement of an issue.
Undeniably much confusion and conflict exists in the decisions in this state which have some bearing upon the particular question under consideration. The writer is convinced that it originates in a failure to appreciate inherent differences between the two methods of submitting jury cases — upon a general charge and upon special issues. In submitting a case upon a general charge the submission of the issues is an inseparable part of the charge or instructions upon the law relating to the issues. The function of the charges or instructions is to inform the jury of the law to the sole end of enabling the jury to apply the law to its findings, (whatever they may be) upon the issues of fact. When the radically different method of submission upon special issues is adopted it is inherent in the very nature of such different method that there must be a separation of the issues from the charges or instructions. The issues are required to be so stated that the findings thereon will constitute only findings of fact. After the separation what becomes of the charges and instructions? Why should it be necessary in addition to the submission of the special issues to give such charges or instructions? To say that in any case submitted upon special issues it is necessary to give a charge or instruction upon the law governing any or all of the special issues is tantamount to a denial of the proposition that the jury under such plan of submission need not, and ought not, to be informed as to the law.
The opinion in the Ector case assumes that the explanations and definitions required by the statute in submissions upon special issues, perform the same, or similar, function as charges or instructions in cases submitted upon a general charge. Do they? The function of an explanation or definition of a legal term is to enable the jury to understand the meaning of the legal term. The function of a charge or instruction is to inform the jury of the law in order that the legaleffect of their findings of fact, may be truly declared by their general verdict. How, then, in view of these totally dissimilar functions, can it ever happen that an explanation or definition of a legal term, in order to be adequate, must consist of, or, at least must include, a charge or instruction upon the law relating to an issue? It is submitted that no such situation can ever arise; and any attempt to do so would be a gratuitous disregard of the basic reason for the method of submitting cases upon special issues in that it unnecessarily introduces the very thing which it is the purpose of that method to avoid.
Suppose in this case, as also in the Ector case, the issue had been stated as was said in the latter to be the usual, although less preferable way, in substance as follows: What do you find from a preponderance of the evidence is the amount of damages, if any, sustained by the plaintiff as the result of her injuries, if any? The legal term requiring explanation or definition, if any, would be the word "damages." Webster's International Dictionary gives the definition of "damages" as a legal term thus: "The estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right." There is nothing in this definition *Page 268 concerning the inclusion and exclusion of elements. No explanation or definition of the word "damages" would, in any event, be required unless upon the presumption that the jury did not understand the meaning of the word. Indulging that presumption we may ask, would the instruction which it was held the court erred in not giving have enabled the jury to understand the meaning of damages? The instruction merely informed the jury that from the amount of compensation, if any, to be found, there should be excluded certain elements. What was the authority of the court, even if the case were submitted upon a general charge, to instruct the inclusion or exclusion of the particular elements? Can there be any other answer than that the law authorizes recovery of those to be included and forbids recovery of those to be excluded? And, if so, can there be any argument against the proposition that an instruction to the jury to make such inclusions and exclusions would be a charge or instruction upon the law? The point, however, which is here sought to be emphasized is that if the jury did not know the meaning of the word "damages" — the only reason for giving a definition or explanation of such term in any event — they would gain no better knowledge from the charge. The charge performed no function of an explanation or definition of the term.
Dallas R. T. Co. v. Ector , 131 Tex. 505 ( 1938 )
Pedigo Pedigo v. Croom , 37 S.W.2d 1074 ( 1931 )
St. Louis, S. F. T. Ry. Co. v. Houze , 28 S.W.2d 865 ( 1930 )
Galbraith-Foxworth Lumber Co. v. Gerneth , 66 S.W.2d 471 ( 1933 )
Texas P. Ry. Co. v. Phillips , 56 S.W.2d 210 ( 1932 )