No. 23-2642 | Tex. Comm'n App. | Feb 19, 1919
For convenience the parties will be designated as Water Company and Motor Car Company.
The Motor Car Company sued the Water Company and L. C. Hill in the district court to recover a balance due upon a promissory note executed by the defendants in part payment for a Stoddard-Dayton Automobile.
The Water Company answered by a plea of failure of consideration, setting up a war
From verdict and judgment following the court's charge the defendants appealed. The appellate court refused to consider the assignments of error in appellant’s brief, and held that no terror apparent of record” was presented by the assignments in the brief.
An application for writ of error was granted by the Supreme Court (163 S. W. xvi) in the view that the Court of Civil Appeals erred in holding that the giving of the peremptory instruction, under the circumstances of the case, was not fundamentally erroneous.
Opinion.
The Court of Civil Appeals refused to consider the case for three reasons: (a) Because the objection to the charge was not raised properly in the motion for new trial; (b) because the assignment of error to the charge was too general to disclose error, and in this connection that the propositions under the assignment were not germane; and (c) that there was no fundamental error raised by the assignment of error, and that none was “apparent of record;” 160 S.W. 628" court="Tex. App." date_filed="1913-10-29" href="https://app.midpage.ai/document/harlingen-land--water-co-v-houston-motor-co-3948116?utm_source=webapp" opinion_id="3948116">160 S. W. 628.
The Court of Civil Appeals held that the motion for new trial and the assignment are too general to present the error and should not be considered. The motion and the assignment are correctly stated in the opinion.
We have carefully considered the motion and assignment, and, are of opinion that they are sufficient to require consideration by the Court of Civil Appeals. Clarendon Land Co. v. McClelland, 86 Tex. 179" court="Tex." date_filed="1893-11-23" href="https://app.midpage.ai/document/clarendon-land-investment-agency-co-v-mcclelland-bros-3954059?utm_source=webapp" opinion_id="3954059">86 Tex. 179, 23 S. W. 576, , 1100, 22 L. R. A. 105; Cotton Press Co. v. McKellar, 86 Tex. 700, 26 S.W. 1056" court="Tex." date_filed="1894-05-17" href="https://app.midpage.ai/document/bonham-cotton-press-co-v-mckellar-3916738?utm_source=webapp" opinion_id="3916738">26 S. W. 1056; Brackenridge v. Claridge, 91 Tex. 527" court="Tex." date_filed="1898-03-03" href="https://app.midpage.ai/document/brackenridge-v-claridge--payne-3955072?utm_source=webapp" opinion_id="3955072">91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593; and Ry. Co. v. Babno (Civ. App.) 140 S.W. 382" court="Tex. App." date_filed="1911-06-14" href="https://app.midpage.ai/document/pecos--n-t-ry-co-v-bitting-3941110?utm_source=webapp" opinion_id="3941110">140 S. W. 382. In the last-cited case the learned judge who wrote the opinion in this case also announced the holding there.
“It is to be borne in mind that the statutes 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.”
We are not favorable to the idea of a disregard of the rules by litigants in seeking relief from errors which arise in the trial of cases, and these rules ought to be-followed. However, we are loath to deprive a litigant of a substantial right by invoking a technical construction of the rules governing procedure when a reasonable construction will afford opportunity for relief. There may arise cases where strict construction is proper and required; but' where the brief, taken as a whole, reasonably presents the error sought to be corrected, we believe it more in accord with justice to give it consideration. In the instant case a fair consideration of the entire brief makes apparent the error of which appellants sought to complain in the Court of Civil Appeals.
From what we have said it follows that the Court of Civil Appeals erred in refusing to proceed to a consideration of the case.
Article 1971, R. S. 1911, requires the court to “submit all controverted questions of fact solely to the decision of the jury.” The court charged that the evidence was insufficient to entitle defendant to relief, and to find for plaintiff.
While the evidence is rather' uncertain in support of the various items of damage
Defendant Hill testified as follows:
“During the time that I had this car I think I paid in the neighborhood of something like $1,800 or $2,000 for repairing the car by reason of defects in it. Those charges were reasonable. That is what I bought cylinders for. That is what I bought frames for, paid freight bills, telegraph charges, and telegraph bills.”
The evidence tends to show that the contract price of the car was in the neighborhood of $8,200, and it tends to show that the car was inherently defective in some of its parts. IVe discover no evidence on the question of whether there was or was not a market value for the car in the condition received, or whether it had any value in that condition. Under the pleadings and under all the evidence the jury might, taking into consideration all the facts, have been able to determine the value of the ear in its condition when delivered, and therefore ascertained the damage upon this theory; but, aside from this, there were facts disclosed which might have authorized the recovery for specific damage incurred in repairing or replacing defective parts. We are awale of the rule that would require the defendant in this case to prove his damage, and we are not prepared to say that he has not introduced sufficient evidence to justify the submission of the cause under proper instructions as to his defenses, and are inclined to the view that he has done so.
In making the above observations we have had in mind Gutta-Percha & Rubber Co. v. City of Cleburne, 102 Tex. 86, 112 S.W. 1047" court="Tex." date_filed="1908-10-28" href="https://app.midpage.ai/document/gutta-percha--rubber-manufacturing-co-v-city-of-cleburne-3916919?utm_source=webapp" opinion_id="3916919">112 S. W. 1047, Graves v. Hillyer (Civ. App.) 48 S. W. 889, and 85 Cyc. 474, together with the authorities cited there under note 34. These authorities support the principle announced in this opinion.
It being the province of the jury to judge the facts proven and the weight to be given to the testimony, we are of opinion that the evidence required the submission of the issues arising on defendant’s pleadings and evidence. The court having peremptorily instructed against the defendant, and having peremptorily instructed in favor of the plaintiff, in our view deprive the defendant of a substantial right to have the jury pass upon the evidence offered in support of his pleadings, to that extent invaded the province of the jury, and committed fundamental error.
We are therefore of the opinion that the judgments of the Court of Civil Appeals and of the District Court should be reversed and the cause remanded for a new trial.
The judgment, as recommended by the Commission of Appeals, is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission upon the question discussed.
.<>• — %Fn ■ other cases see same topic-and KEY-NUMBER in all Key-Numbered Digests and Indexes