*1 any Bolin’s-part-.to inference intention on- created secure of. - himself; expiration -For three months after: the. ^eases'for n unleased,' willing lay- any buy to available the lands all .beyond-doubt, pay price. The fact seems be established not until and on account of the that Bolin that it was Gist well reacquisition in the interested Howard leases. This became adjoining south center of a tract was located 100-acre well only on the north and at-most a few hundred the Howard' leases - away.-. feet my opinion there It is are no facts nor inferences fiduciary relationship support violation of a the claimed showing obtaining by Bolin of these leases. There seems drilling geological any information obtained done on arrangement partnership effec- while the the Howard leases purchase the farm-out or to ob- that induced Bolin to leases tive personal for his benefit. the renewal of Howard leases tain general respond- Many in this area. The wells had been drilled prospecting for Bolin, had on own account been active in ent drilling vicinity. Unquestionably each well added oil and say data, geological picture, obtained part partnership in the extreme south wells drilled leases, the realm of a causative factor enters the Howard speculation. evidence, my opinion, issue of fact fails to raise-an determination and there- to be submitted to for sufficient Willoughby proper. summary judgment respondents
fore 435, Jones, Em- 2d Fowler v. Texas 251 S.W. Co., App., wr. ref. ployers Texas Civ. 237 S.W. Insurance Appeals. judgment of the of Civil I affirm the Court would July Opinion 1954. delivered Rehearing 13, 1954. overruled October Vega Grieger Matilda
Fred July 1954. No. A-4577. Decided Rehearing overruled Ootober 85) (271 Series *2 Woffor'd, Barkley & Barkley, Fullerton J. R. Taylor, petitioners. holding of Civil The Court erred that instruction effect of their answer to 2 told No. No. improper. that the manner submission Kellahin, dismissed; error Mills v. Burrow v. *3 206; McMurrey Corp. Yawn, 2d 226 S.W. 143 Davis refused. error Cadena, Antonio, Longoria, C. of San and Carlos David respondent. Austin, for response Stores, cited Boaz v. White’s Auto 141 Texas 481; Co., 2d Fox v. Dallas Hotel 240 S.W. Curtis, Theis 2d 754. S.W.
Mr. Chief Justice Hickman delivered the Court. by against respondent, Vega, petitioner, is a suit Matilda
This damages alleged Greiger, wrongful killing for Fred for son, Vega. alleged petition Arthur Her “will- her Vega shooting fully maliciously by and killed him Arthur with gun.” special on a was submitted to a two as follows: you preponderance 1: find from
“SPECIAL ISSUE NO. Do Grieger shooting evidence action Fred and that the wrongful? deceased, Vega, Arthur “Answer ‘Yes’ or ‘No.’ ‘Yes,’ you Special
“If and in that have answered Issue No. following only, you special answer event will issue: any, money, 2: if do NO. amount “SPECIAL ISSUE What would, paid you preponderance the evidence if find from a Vega, now, plaintiff, reasonably compensate Matilda benefits, any, by pecuniary if sustained her as result the loss of Vega? of Arthur the death stating by dollars, any, “Answer cents, the amount of if any. if $____________________________”
“Answer: “No,” The first answered and in accordance with the court’s instruction the second issue was not answered. Upon verdict, judgment was rendered that take nothing. The case was reversed and remanded the Court of Appeals. “wrongful” defined the term Special as used in No. 1 Issue as follows: “By ‘wrongful,’ Special term as used in Issue No. means greater degree
the use defendant of force than was reas- necessary onable under existing the circumstances then acting the defendant was not at the time in his own self- defense, explained. you as below charged In this connection are that if at the time the deceased or his brother reasonably their acts or conduct induced the defendant believe that deceased or his brother was about attack him deadly weapon with a probably which would cause defendant’s bodily injury, death or some serious or if the acts of the brother, deceased reasonably appeared or his to defendant at time, standpoint alone, viewed from his that deceased or his brother was deadly then about to him weapon attack probably which would cause defendant’s death or some serious bodily injury, reasonably and if same was *4 calculated to create defendant, in the mind mind, of and did create a reasonable expectation or fear bodily injury, of death or some serious there, that defendant then and by moved and actuated such expectation bodily reasonable or fear of injury, death or serious deceased, Vega, shot and killed Arthur then under such circum- stances the would be in his lawful self-defense and would ‘wrongful.’ right not be It is not essential to the of self-defense danger that real should exist. If standpoint, from defendant’s standpoint alone, taking and his and peared into consideration all the facts surrounding parties, circumstances reasonably ap- the it danger to him that he bodily of death or serious injury, against under the law he had the to defend such real, apparent danger danger to the same extent as if the were and if he shot and killed the circumstances, deceased under such ” ‘wrongful.’ would not be point upon which the case was reversed the Court of submitting that the trial erred in court 502
damage
Special
conditionally.
Issue No.
The rule is
issue —
2—
grounded
practice
special
in our
that it
error
well
to submit a
conditionally
when
effect
such
submission is to in-
jury
judgment
as to the
which will
form
be rendered
aas
for a
result of the verdict.
order
conditional submission to
jury
it must
be erroneous
“inform” the
of that which it would
spirit
know
for such conditional
not
but
submission. The
of our
submitting
practice
cases on
would
issues
be violated
jurors
if
were informed either
court or
counsel of
answers,
their
the effect
effect of
but where
is so
that
obvious
ordinary intelligence
effect,
any juror
would know
its
spirit
charge
nor the
is violated
the letter
rule
neither
knowledge.
question
The sole
assumes such
decision
petitioner wrongfully
respondent’s
killed
or
was whether
opinion
juror
been of
would have
No
son.
damages
if
his act was not
liable
intelligence
legal
ordinary
would have known the
Any juror of
Special Issue
1.
conditional
No. The
sub-
of the answer
effect
jury
Special
2 did not inform
of its
Issue No.
mission
legal
therefore,
and,
effect,
should not cause a reversal of the
Hebert,
314,
judgment. McFaddin v.
118
15
Texas
court’s
trial
Cigar
Campbell,
250,
213;
134
Co. v.
Finck
2d
S.W.
Grilliett,
Lloyds Casualty Company
of New York v.
2d
S.W.
refused;
Kellahin,
Mills v.
2d
error
S.W.
2d
64 S.W.
dismissed;
Davis, 226
2d
Ref.
Burrow v.
S.W.
writ
Baughman,
Railway
N.R.E.;
and Terminal Co. v.
Dallas
Ball
places
v. Cannon
Respondent
reliance
Grasso
Freight Lines, 125 Texas
2d 482. That case
Motor
distinguishable
one.
instant
There
jury
the effect of all its answers to
informed
court
negligence.
negligence
contributory
primary
of both
always
in-
recognized
error to
it is not
reversible
negative
answers
jury
the effect
affirmative
struct
answering
duty
questions would relieve them the
to certain
was reversible error
questions,
held that
certain
all
its answers
of the result of
was informed
when the
negligence
primary
issues of both
there were
in a case wherein
Barnes,
negligence.
contributory
Co. v.
Continental Oil
*5
upon by respondent
refused,
also relied
error
2d
Appeals.
case
That
judgment of the Court
Civil
support of the
distinguishable
the instant one.
clearly
likewise
is: “Thou shalt not submit
here
position of
The
accept
conditionally.”
unqualifiedly
cannot
damage
We
issue
practice
It-.would,
to sub-
be
better
of-
decision.
asi:^f.rule.
when,
unconditionally,
damage
in a case-like
issue
mit tíié
conveys
informa-
one,
conditional submission
the instant
account.
on that
jury,-
should.not be reversed
the case
tion-to.the
Civil'Appeals
Having
erred
that the Court-of
determined
ground
judgment
sustaining
point of error made the
of its
duty
reversing
cáse; it
our
to consider the briefs
becomes
determining
court,
purpose of
by respondent
for the
in that
filed
ground.
may
judgment
affirmed
some other
its
be
whether
brought
Appeals
point
forward to the Court of Civil
first
The
multifarious,
Special
since in order
Issue No. was
by a
jury
required to determine
issue the
to answer said
petitioner
Single answer,
time he killed
at
both whether
acting
peti
respondent’s
in self-defense and whether
son was
necessary under the circum
more force than was
used
tioner
complaint
stances,
points
was made of the refusal
and
requested by
certain
trial court to submit
inquired whether or not at the time
respondent.
One such
making
Vega
upon peti
was killed he was
an assault
Arthur
tioner;
of such
nature as to
another whether the assault was
expectation
petitioner
of death or serious
produce in
a reasonable
petitioner
than
bodily injury;
used more force
another whether
self-defense;
necessary
and another whether
in his
repelling
disposal
attack
means of
had at his
other reasonable
together
being
him,
any.
points
present
if
then
made
These
in one
not
that self-defense should
be submitted
the contention
elements,
issue,
into
several
but should
broken down
its
separately
that contention.
cannot sustain
each
submitted. We
charge
language
practically
is in
the identical
Barclay,
approved
writ refused.
in Barrow v.
269 S.W.
664, 655, 666,
Yawn,
writ
McMurrey Corporation v.
charged
one,
refused,
like
court
the instant
‘wrongful’ as
charged
“You
the term
as follows:
are
degree
greater
Special
of a
use
used
Issue No. means the
necessary
circumstances
than
under the
force
was reasonable
existing.”
the Court of
then
The case was reversed
in the definition
included
because there was
right
to the
“wrongful”
not essential
instruction that it was
has
danger
exist —that
should
self-defense that a real
danger
against
the same extent
right
apparent
defend
holding
authority for the
danger.
opinion cited as
to real
together,
Considering
cases
the two
Barclay, supra.
Barrow
of self-defense
all
is that
elements
the conclusion
instruction
in one
included
should be
raised
the evidence
*6
inquiring
submitted
killing
one
was
whether
wrongful.
employed by
The method
grouping
the trial court of
several
special
elements
an ultimate issue into one
issue is to be com
mended. The ultimate issue in this case was whether or not the
placed
charge
The instruction
purpose
enabling
for the
particular
to answer that
question, and it was not error for the court to decline to break
down that
instruction and submit
elements
self-defense
requested. City
Lurie,
of Houston v.
871;
Howell,
224 S.W. 2d
14 A. R.L.
Howell v.
978; Hough
147 Texas
144,
Grapotte,
127 Texas
Appeals
Another to the Court of Civil portion charge the trial court erred in that of its wherein effect, jury, petitioner informed the had the respondent’s son, if, kill Vega, Arthur at the time making him, either that son upon or his brother was attack reasonably or if he believed that either them was about to charge make an attack him. On its face that seems to present hardly error. It would be contended that the fear of an attack one justify party’s would of that justify brother. affirmatively Inorder such a the record must acting disclose the two in con brothers were cert. respondent’s The evidence which came from own witnesses police city establishes these facts: Petitioner was a officer in the Taylor. discharge Vega In the of his duties he met the broth Taylor eight night. They ers on a street in about o’clock at were accompanied by Vega Willie Olivarez. The were drunk brothers staggering. requested Olivarez, Petitioner who was not drunk, Vega to take the brothers off the street. words Some ensued, Vega petitioner and then Arthur attacked and threw ground. jumped upon peti him to the Both he and his brother ground. tioner held with him his back to that situa tion, petitioner help, pulled called Olivarez for and Olivarez petitioner. one the brothers off Then was able to got one, free himself from the other on his feet. He back then commanded the two brothers to sit down next to wall. petitioner, They wall while squatted with their backs down hand, guard pistol them. Petitioner di- in his held over telephone police department help, passer-by rected a shortly arose and advanced toward thereafter both brothers *7 undisputed petitioner, whereupon of them. Those he killed both concert, facts the acted in establish that two brothers charge complained justified giving portion of. the of the brought point Another to the of Court Special respondent incorrectly placed upon that the No. 1 Issue proving killing burden of that in the deceased acting presents ques in self-defense. most That the difficult right damages tion in the The sole case. of to recover statute, right is derived from the at common law. did not exist Article 4671. That gives death “is The statute such a when by wrongful act, neglect, carelessness, caused the unskillfulness or “wrongful default of another.” It will observed that act” be placed giving is category grounds in the same as the other rise action, to cause of from which it follows that the burden placed upon plaintiff “wrong prove to the death was caused ful negligence act” any is the same as that for or of death grounds the investigation discloses, named. So far as our agree all plaintiff upon authorities seem to the burden is that prove killing proves the If an inten he tional nothing burden, more, and he has met that if raising the defendant offers no evidence of self- the issue defense, plaintiff judgment. is to a This for the entitled reason killing unexplained that an presumed intentional is wrongful. When, however, example just mentioned, above pleads killing justification defendant self-defense of supporting plea, offers are evidence authorities question proof conflict on placing on the burden adopting issue of self-defense. the view Some cases upon justification prove burden rests the defendant distinguish necessity seem not proof between burden going They proceed forward with the evidence. theory during proof that the of a case. burden shifts the trial jurisdiction In proof this it is held that the burden of never during any shifts from one at the trial. the other time Hills, 141, 356; Pannell, Clark v. 67 Texas 2 Boswell v. 107 433, 593; Money, Walker 17 Texas Jur. § Kuykendall Edmondson, 208 Ala. So. was held that to kill he after defendant admitted an intent going evidence, had the burden of and that forward with the reasonable"justification- shown, of- when was. the- burden reasoning! employed 'plaintiffThat shifted to the -same was. back 355, 358; Creech, Wash, 429, in 1918A, 353, 153 Pac. L. R. A. Welch v. : u dte we:q from which admitted, pr'dv'ed prima facie'’ease “Where the is" out, for, and, reasonably accounted is made when the plaintiff, where it the burden is met and shifts back belongs in all civil actions. á great deal, .proof,
“A has been said about the .burden primary has the affirmative rule all cases is that who the.one competent proof. If that burden must sustain it sustained, law, it presumption is incumbent either fact or does, weight If he of evidence. defendant to balance the recovery; has not there can be no sustained by preponderance of the evidence.” *8 cases, agree not in but with the conclusions those We ground proof from one the that the of shifts burden during throughout plaintiff. the It on another the trial. remains justification, the defendant’s evidence an issue of When raises wrongful balanced, and the presumption that was is the rely large. longer alone plaintiff at can then no matter is set upon the.wrong by preponder presumption, prove the must ance the evidence. juris- reasoning accepted in not some
The above line of
is
case,
dictions,
discovered
are referred
have
but we
none,
plaintiff
of the burden
which would relieve the
Winfrey,
It
held in Nichols
in
case.
is
under the facts
this
“Where the province, jury their from which the within of an occurrence defendant, might exculpatory to the inferences favorable draw convey a the as court to so instruct it is error the. weight of suggestion an additional defendant must that himself.” evidence exonerate proving holding leading that the burden One cases State, Md. Tucker v. is the defendant self-defense rests opinion 778, 782, L. A. R. 181. The 43 Atl. Atl. respect significant very observation
in that makes this Winfrey, supra: Nichols form largely on the “In was based that case the decision this, distinguishable when pleadings, easily from but it the defendant which we see 'that the facts on from mainly disclosed were could base his claim of self-defense inseparably They developing were so own case. her homicide of the interwoven in and incidents the circumstances resgestae, included only part of the but were constitute plaintiff’s proofs itself.’ descriptive within offense nothing absolutely plaintiff’s seen, As we there have was up by testimony any justification, and the defense set to show new, he did affirmative fact —that the defendant himself was a frighten Johnson, him because not intend to and shot to shoot Reynolds danger, he believed etc.” was Death, Jur., recognized That distinction is in Amer. § generally plaintiff’s it “The that when where is stated rule proof of justification, own burden evidence shows no causing justification death is an intentional act excuse for Winfrey, upon the defendant.” rule followed in Nichols v. State, and in supra, impliedly approved in Tucker v. was recog- early quotation Jurisprudence, American Walker, quote nized Texas. from March v. We 377: this, case, plain- every developed on
“But in as in viz., If case, tiff to establish his killing, but, wrongful whilst estab- the evidence failed to show a lishing justi- killing, developed act it was done in the scarcely necessary self-defense, exercise it is fiable say wrong.” the verdict *9 establishing respondent’s testified her the witnesses might regarding killing, facts to facts the the finding justification. the case been Had well have based rested, presented: have been closed when she this situation would killing may son; intentionally respondent’s Petitioner killed such may hand, been wrongful, but, have been it have on the other prove petitioner justified. surely upon The did burden not rest prove upon respondent to wrongful, it that was not was the but that was given Appeals is opinion of Civil Much Court awas question the the court’s that discussion (cid:127) general charge permissible on not in cases submitted .ground charge: objection was on-that
issues. No made to the discussing/ is, question therefore, necessity for that there o opini n in this judgment The reversed and the Court is that of the trial court is affirmed.
Opinion July 14, delivered dissenting.
Mr. Justice Griffin agree I majority except opinion with the in the cause above killing insofar as prove it holds that was the burden to that the (who committed the trial was defendant the court) upon (who his own self-defense was plaintiff below). holding upon This is based the fact that plaintiff the agree “wrongful.” must establish that I upon plaintiff
that the burden was make out her case. This proved intentionally she did when she the defendant deceased, shot the such that deceased died as a result of wound. majority opinion says:
The (plaintiff) proves “If an in- he burden, nothing more, tentional he has met and if raising the defendant self- offers issue of no evidence defense, plaintiff judgment. is entitled to a This for the reason that an unexplained presumed intentional wrongful. When, be however, example just above men- tioned, pleads justification defendant self-defense in killing and offers supporting plea, evidence the authorities are in question placing proof conflict on the the burden of on the issue proceeds self-defense.” then hold that since raising the evidence the issue of was de- self-defense veloped by plaintiff part case, as a of her main burden of proof on thereupon upon plaintiff. self-defense proof (persuasion) burden of is determined before begins, introduction of evidence is not and never shifts. It changed by Money, evidence. Walker S.W. 2d 428.
If upon plaintiff the burden of in a suit such here, we have it must be a law. The universal rule of burden proof cannot, any disprove justice, case, self-defense one to establish defendant depend upon proof offered self-defense in another. It cannot *10 particular plea plea in in a case. The of self-defense is a killing, but nature of It admits the confession and avoidance. legal by justification seeks thereof. to avoid the thereof effect pre- pleading 94, part: “In to a provides, in Rule T. R. P.C. * * * affirmatively ceding pleading, forth a shall set constituting any defense cm avoidance or other matter affirmative * * unless added) held that (Emphasis rule it is Under this pleaded, specifically it is not error affirmative defenses are Smith, City Coleman v. refuse to an issue on them. submit 936, App., (1943), refused. Texas Com. 168 S.W. 2d testimony an attack herein showed While petitioner just prior made with was not to the the attack justify deadly weapon,-and such attack was not sufficient or excuse the homicide and to raise the issue self-defense ground unless it caused the defendant to have a reasonable bodily fear injury death or attackers. serious at the hands of the apprehension Whether or not the attack raised such mind of had defendant was a defensive issue. He repel any plain- kill to the attack under other circumstances. grounds, certainly tiff’s evidence most did these not establish law, and, most, only as matter of of self-defense. at the issue served to raise
Raising the issue relieve defendant does not establishing grounds the burden justification or excuse such killing. It that, exception is settled our decisions with the gives rule of person evidence which accused of a crime benefit of a doubt, reasonable the law of self-defense is the same 372, both civil Walker, and criminal cases. March 48 Texas v. 984, Fambrough seq., Texas Jur. et and authorities cited. there Wagley, 2d 478.
It is also always person well settled that it is unlawful for one intentionally another, kill justified unless or such excused under justification the law. Self-defense is for a killing, provided person who in fear of does the death bodily injury or serious at the hands of the deceased at killing. Mosley State, the time of Rep. 149 Texas Crim. State, Rep. Brown v. 153 Texas Crim. Code, Ann., Article Texas, provides: Penal State voluntarily any person “Whoever shall kill shall within this State guilty distinguished every murder. Murder shall be species of homicide the absence of circumstances which negligent reduce the jus- offense to homicide or which excuse tify killing.” So far Ias have find there is no been able to prior majority herein, that, which holds *11 510 necessary part plaintiff’s
as a part case, the evidence on the negative plaintiff must the existence of self-defense. prima A by plaintiff case by showing facie is made out an inten- killing. escape liability tional To self-defense, under the evidence must by establish that the act was done defendant while in fear bodily injury of death or serious at the hands of the deceased. Smith, App., Croft v. Texas (1899), Civ. 51 no writ history. This case approved has been cited and many times question. involving without homicide, general civil suits “the rule is that self-defense is an affirmative defense for. defend- prove.” ant to A. L. R. 2d and authorities therein cited.
Self-defense evidentiary wrongful is not an of a but is an liability. ultimate being case, defense to Such burden plaintiff, is not a upon a but defendant relying upon who is the one such defense. I believe in order to escape liability by plea, virtue of such the defendant must secure finding a favorable him. present case,
In the
the evidence does not show an attack
deadly
defendant
either
deceased
his brother with a
weapon. Therefore,
it was for the
to determine whether
plea
or not the self-defense
was established to
extent
justify
killing. However, reprehensible
may
as
have been
public place,
that deceased and his brother were drunk in a
provide
punishment
law does not
death as
for such offense.
permit
attack,
repel
Neither does the law
except
a threatened
prevent
injuries
may
the infliction of
which
result
bodily
State,
injuries.
death or serious
v.
Burns
Texas Crim.
Rep.,
(1954),
that the action for
death is
the same statute
gives
by negligence,
Smith,
an action for death
etc.
Croft
App., (1899),
Texas Civ.
An illustration shows the negligent killing wrongful by shoot- ence between a and a ing plaintiff would sues to consider cause wherein plaintiff collision. The for death due to an automobile defendant showing merely the collision between does not make case automobile, and the re- defendant’s deceased’s automobile and wrongful killing sulting-death In a must do more. deceased. He showing casé, prima case facie does make a deceaséd, and deceased Willfully deferidant'interitiohally and shot damages course, have show would died Of each thérefrom. act sufered, main illustrates abov e . diffe nce re ruled Cameron Com I this as to self-defense is think refused; Kubecka, App., 283 press Civ. Co. Kinney, App., *12 Civ. Sumner no writ by- history. should be. submitted I also believe self-defense upoir proof placing separate special properly the burden seeking liability escape thereunder. the one thing, policy very precious life and dear Human in- require that one who protect of our laws it. Our laws excuse punished he can tentionally unless kills another must be very salutary one. justify is a I think rule of law the act. this say in- agree to one who will I can to a rule of law which never go liability another, unless tentionally free from civil kills ‘You seeking you in fear you did not act can show hold one you away what bodily took injury at time death or serious your you victim.” cannot return —the life wrongfully placing the burden For the error in cause self-defense, and remand this the issue I would reverse proceedings. for further July
Opinion 1954. delivered' Rehearing 13, 1954. overruled October
H. W. Miers v. H. W. Brouse 30, 1954. No. A-4406. Decided June Rehearing overruled October (271 419) S.W. 2d Series