International G. N. Ry. Co. v. Bartek , 177 S.W. 137 ( 1915 )

The writer adheres to the dissenting opinion heretofore filed, but does not concur with his Associates in the statement in the majority opinion this day filed, to the effect that his dissenting opinion overrules all the decisions construing the act of 1913, holding that, in order to preserve an objection to the action of the trial court in giving or refusing instructions, it is necessary for the complainant to bring up in the transcript a bill of exception showing that he made such objection within the time prescribed by the statute. In this case the transcript shows that appellant, in proper time, and manner, requested the court to give a special charge instructing the jury that the burden of proof was upon appellee to show by preponderance of the evidence that the wreck in question was caused by one or more of the acts of negligence complained of in his petition; and the record contains a bill of exception to the action of the court in refusing to give that charge. Appellant has assigned error upon that ruling, and but for the bill of exception referred to I would concur in the holding that appellant is precluded from complaining of the action of the court in refusing to give that charge. In the original majority opinion it is said:

"The charge of the court in placing the burden on the defendant to establish by preponderance of the evidence its lack of negligence was erroneous, and the special charge requested is the law of the case and should have been given."

That opinion then proceeds with an attempt to show that, notwithstanding the error in the court's charge and the error in refusing to give the requested charge, appellant is not entitled to have the case reversed because of the fact that it did not reserve a separate bill of exception to the charge of the court placing the burden of proof upon appellant. That ruling is founded upon the conclusion that, inasmuch as the record fails to show that appellant presented to the trial court an objection to that identical portion of its charge, and reserved a separate bill to the action of that court in overruling such objection, it must be held to have approved the court's charge in so placing the burden of proof upon appellant, and that the question of the refusal of the court to give appellant's requested instruction placing the burden of proof upon appellee must be dealt with by this court as though appellant had specifically requested the court to charge that the burden of proof was upon appellant. In other words, the holding is that appellant is in the same attitude as it would be if it had requested the court to give charges diametrically opposed to each other and the court had given the one which stated the law incorrectly, in which event it is held appellant would have no right to complain of the action of the court in refusing to give the one which stated the law correctly; and that conclusion is reached because the Thirty-Third Legislature, in amending article 1971 of the Revised Statutes, declared that objections not made to a charge before it is read to the jury shall be considered as waived; and also amended article 2061, so as to make it read that:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

Two of the foregoing articles referred to are 2058 and 2059, the former providing that any party dissatisfied with any ruling, opinion, or other action of the court may except thereto at the time the same is made or announced; and the latter declaring that:

"No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible."

As stated in the former dissenting opinion, the writer believes that the purpose of the Thirty-Third Legislature in passing the act referred to was to require an appellant, if dissatisfied with the law of the case as presented by the trial court to the jury, to make his objection to that court before the case is submitted to the jury, in order that the charge may be revised and corrected before it is read to the jury; and whatever is sufficient to apprise that court of the specific objection to a charge given or to the refusal to give a charge requested is, in my opinion, a substantial compliance with the law as enacted by the amendment referred to.

As a matter of fact, the record in this case shows that appellant filed in the court below written objections to the court's charge, including that portion of it which placed the burden of proof upon appellant; but the record does not show that the objections referred to were called to the attention of or ruled upon by the court, and therefore I concede that the appeal is to be disposed of as if the document referred to had not been filed. My view of the question is that, as appellant has brought up a bill of exception to the action of the trial court in refusing to give its requested instruction placing the burden of proof upon appellee, it should not be held that it has acquiesced in and approved the charge of the court placing the burden of proof upon appellant. The Legislature has declared that in order to preserve a bill of exception no particular form of words shall be required, and has further declared, in substance, that all that is necessary to constitute such bill is a document signed by the judge showing the objection to the particular ruling or action, and the statute declares that the document referred to shall be as brief as possible. In this case the only question as to the burden of proof was whether the law placed it upon the plaintiff or the defendant, and the latter has reserved a bill of exception to the action of the court in refusing to give a charge which would have placed the burden of proof upon the plaintiff. It is impossible that the burden of proof as to a particular matter can at the same time rest upon each party; if it be placed upon one, it cannot rest upon the other, and therefore, when appellant requested the court to instruct the jury that the burden of proof was upon the plaintiff, it seems absurd to say that at the same time appellant approved the charge of the court placing the burden of proof upon it. And yet the construction which the majority of this court has placed upon the statute leads to that result. Appellant's bill of exception to the refusal to give its requested charge placing the burden of proof upon appellee constitutes, in substance and essence, a protest against the court's charge placing that burden upon appellant, and, though not in the shape of a formal bill of exceptions to that paragraph of the court's charge, it should be so treated because it is a substantial compliance with article 2059, prescribing the requisites of such bills and commending brevity in their preparation. At any rate, inasmuch as appellant, in the manner prescribed by statute, is crying aloud in this court, as it did in the court below, against the action of the trial court in refusing to give the requested charge placing the burden of proof upon appellee, I am not willing to hold that that cry is converted into silence and rendered inaudible by the fact that appellant has not made a similar cry against the charge of the court stating the law directly the reverse of the requested charge. In my opinion, such a construction pays too much deference to literalism and not enough to the spirit and purpose of the statute. Padgitt v. Ft. W. R. G. Ry. Co.,104 Tex. 249, 136 S.W. 442.

Nor is the writer able to agree with the statement in the majority opinion this day filed, to the effect that rule 62a "does no more than to make clear what has always been the correct practice in this state, viz., not to reverse a case on account of immaterial errors of law committed on the trial." At the time that rule was adopted, it was well settled in this state, as announced by the Supreme Court in Railway Co. v. Johnson,91 Tex. 572, 44 S.W. 1067, that when a charge is 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.'" Now rule 62a declares that no judgment shall be reversed on account of error committed in the trial court, 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. In other words, although the Supreme Court had previously held in the Johnson Case, and in many others, that when material error is shown injury to the complaining litigant will be presumed, and that no burden rests upon him in that regard, rule 62a declares that in such case the judgment shall not be reversed unless, in addition to showing error which might have caused injury, the complaining litigant must also show that it probably had that effect. So, if the language of that rule is to be given its ordinary signification, it would seem that, instead of rendering certain the law as it then existed, it was the purpose of the rule to materially change the law and, in effect, overrule former decisions of the court which made the rule. But although this is apparently the plain meaning of the rule, for reasons stated in his former opinion, the writer is not willing to accept that construction of it as the law by which this court is to be governed until the Supreme Court, in the decision of a case, shall overrule its former decisions, including Railway v. Johnson, supra — a contingency not anticipated.