*1 $27,250. alleged fraud, ciation that of It was tion for begin limitation would Clarkson, of acting managing director run from discovery the of the fraud and Association, promised period Building the & years. Loan in such cases two that From peti- this indebtedness would extended the specific allegations in the association, tion, indefinitely by representing suit for lien foreclosure of apartment that and it was in fine financial condition property by the receiv- was filed accept January, would one-half of the net income 1931, er and on the 17th of apartment February, 1931, from the in lieu house possession was taken monthly payments. al- sequestration. fixed was also Certainly pro- It under these McCart, leged president H. C. ceedings brought that knowledge association, representations defrauded, confirmed they that tiffs if such had been promises plaintiffs case, and and that period Clarkson and in motion the set convey thereby limitation, to and did nearly induced and a month more county 8, their farm in to Clarkson. years elapsed Wise than two before March apartment 1933, property That title they petition to said original when their filed Pollard, signed was held one who Idabel in this case. It follows- that we must sus- plaintiffs transferring the deed same to tain the action of trial court 9, 1930, plaintiffs and, so, or about October limitation, having done possession prop- pretermit took Worth plea Fort we of res discussion erty county and delivered Wise farm judicata purely academic. Clarkson; representa- deed judgment affirm- of the trial court is McCart, tions of Clarkson and ed. ability financial ex- association to tend the indebtedness- were false 1930, December, suit of Shaw, commissioner, banking state James the Standard Building & Loan Associa- put receivership, L. tion was into Stuck- J. same, appointed being ert receiver for the perform prom- he refused to & PANHANDLE S. F. RY. CO. v. FRIEND McCart, ises of Clarkson and and filed suit et ux. lien of foreclose the the association No. 8171. apartment February said house and on Appeals Civil of Texas. Austin. Court of possession took same se- questration, ousting plaintiffs there- Feb. 1936. plaintiffs from. That defended the fore- Rehearing 4, 1936. March Denied closure suffered against suit but 18, 1933, January them on in the Seven- county, by teenth district court Tarrant were divested ti- possession apartment said tle house property. alleged Slimp It was Slimp wife were divorced that Johnnie has now the name Huff and that Johnnie Prayer is a she feme sole. was for dam- ages alleged plaintiffs’ net value of equity county farm, alleged the Wise $15,000. Stuckert, receiver, Defendants and Mc- by general answered Cart ex- ceptions, up setting the statute of limita- judicata and res tions de- above, nial. As stated the trial court sus- exceptions, tained these and the writ of brings error this action of the court here for review. appears original suit filed March 1933. being This an ac- *2 Mills, Galveston, Cavin, Terry, & Collins, An- Snodgrass, of & San Jackson appellant. for
gelo, Baker, Upton Upton and E. Travis & appellees. Angelo, of San all McCLENDON, Chief Justice. judg- wife recovered Frank Friend and railway (Panhandle & against the spe- Railway Company), Fe Santa verdict, personal damages issue cial injuries property dam- Friend to Mrs. automobile, the col- result age to an (driven at automobile lision between Friend) a switch Mrs. time railway the intersection engine of street in and Chadbourne tracks the latter’s railway appealed. has Angelo. San urged: for reversal are grounds Two proof was errone- the burden (1) That is- ously placed upon the affirmative accident; (2) of unavoidable sue was extra- crossing of whether requiring flagman ordinarily hazardous sup- negligence only ground of (the erroneously sub- verdict) was porting the noted. mitted, hereinafter for reasons un the issue conceded that It is subject urged accident avoidable Bot Magnolia Cola Coca objection. See 347, 78 S.W. Jordan, 124 Tex. tling Co. v. 1513; Ry. Dallas & 944, A.L.R. (2d) (Tex.Com.App.) Darden v.Co. Terminal authorities there (2d) 38 S.W. however, contend, They Appellees cited. the stop realized that would not the is present when it facts the case do track, few feet from They sue of also unavoidable accident. when the jumped brakeman running off the conclusively board, contend that hollered, the evidence gave stop signal *3 crossing shows extraordinari that the was with his lantern. Mrs. testified that Friend assert, therefore, ly any They that hazardous. she looked to her time about the respects urged error the was imma passed she the small structures to the east consequently terial first harmless. We of the street no engine and saw or train. appellees, of consider these contentions did She not hear a whistle nor bell. She which we have concluded should be over then looked to the where left the train ruled. standing. was She did see the switch engine practically upon until it was p. her. collision occurred about 8 o’clock Sunday, The front of the car was struck the April Friend m. was street, which, 1933. Mrs. end alone, engine rear of driving the switch and shoved north on Chadbourne westward across the point, practically street for a distance at this runs estimated at 4 engine from to 8 feet. The evi- due north and south. The switch southwest, dence dispute was without moving substantial was tracks at this point point intersecting Chadbourne street at this one Chadbourne street at an was of will, leading main traffic of angle degrees. of how- arteries out about We city south, ever, toward the for convenience use and west in where east several sub- located; railway’s urban additions referring the course of the residential were heavy, especially that hour; traffic crossing tracks. There were two tracks was at this street, in crossing the main line track on the north and the street going passing operatives track on the south. A switch east one of the train acted as flagman track branched off -from the main line to- engine for the switch train. Mrs. south, beginning wards the about the cen- Friend southerly lived in one of sub- ter the street. It connected further east acquainted urbs and was well with the passing with the The and other switch crossing. way tracks. She was on her to church passenger depot was some the north side of or more when the collision occurred. The engine of on feet west the street the eastbound making great train was the main track. An eastbound train was deal noise. standing passenger on the main track at the issues, Upon other than those noted depot, burning. headlight with its It was above, (4) That found: defendant p. scheduled to leave at 8:30 m. To the did not fail engine switch east of the street and south of the tracks lighted; (7) give nor to signals re- obstructions for about 50 feet quired by ordinary prudence; (10) nor to poles. were a few about 50 At feet south blow engine the whistle before the started buildings. there were several small After street; across the (13) that did fail to north, passing buildings going these the ring keep the bell and ringing; (14) was clear, except view the tracks was therein; negligent (15) but such negligence poles these several hundred feet. The proximate was “the cause the in- engine just switch “spotted” was headed east. It had jury”; (16) peril nega- discovered was passenger pushed train and a tived; (19), (22), (25), (28) that Mrs. train, recently motor which had two-coach arrived and was contributórily Friend was not negligent in .standing passenger at the particulars. various depot, east on the main track across Chad- street, presented We think the situation thus bourne switch, thence onto the would findings that neither passing pro- thence onto the track. then Mrs. track, railway Friend nor the passing guilty neg- ceeded west on the was pulling ligence, the motor As and therefore crossing train. it was collisionwas Chad- street, the result bourne of an collision occurred. Both unavoidable accident. The clearly engine distinguishable the automobile and the switch here from very slowly. brakeman, moving those in the A two cases cited (Mag- above standing Jordan, lantern Bottling on south end nolia Coca Cola Co. running Ry. engine board of the switch Dallas & Darden). Terminal v.Co. In engineer, each of tender. He and who was those cases the situation was such side, hypothesis the cab on the south saw the under no testified that reasonable could approached casualty crossing, explained car as it the ligence than neg- that of presumed from its movements of one or that it the other to the suit. stop would before it plaintiff’s reached the In the track. Case car collided Jordan the street. on side of Chadbourne at the time parked on the Street with car plaintiff’s petition?” was accident described in this collision Plaintiff contended striking truck caused defendant’s you preponderance “2. Do find from a con- from rear. Defendant tiff’s car guilty the evidence that the defendant plaintiff’s struck its truck never tended that negligence as is herein defined that term to these evidence, conflicting as car. in not having flagman at watchman theory contentions, presented no other crossing railroad Chadbourne Street held Each these theories causation. injury alleged herein?” time law. negligence as matter establish “3. negligence, negli- said if Was presented in the analogous An situation was, part gence there of the defend- Case, car struck a street Darden ant, servants, agents its the direct and *4 moving the the rear end of an automobile proximate any, injury, if cause -of the track in street a same direction the car plaintiff complained the as of.” public city the situation was street. Here by railway It is first contended the complicated, presenting a va- much mbre the crossing inasmuch as issue whether the findings riety warranting elements extraordinarily unusually was or hazardous part of to ordinary both care the specifically nor was not by submitted to found the suit. jury, the the verdict will not the judgment predicated upon neg the issue of crossing The issue of extrahazardous precaution ligence having flagman in not a at the the additional a requiring flagman predicated up This contention is particular crossing. time we think this at by railway’s on the clearly presented holding the construction of the evidence. We was 242, however, 117 think, v. Tex. 18 that the evidence S. do not 1084,and cited cases. W.(2d) to other While regard as es conclusive this was so this court entertains no doubt as to matter of law. issue as a So tablish this shows, Ormsby Ratcliffe, expressions holding in there had never record far as the by opinions of the the Commission crossing. at this some previous accident been a by Appeals other Courts of Civil noted the situation evi It is also to holding among dence conflict of view and presented in movement a eastward street, upon question. this the authorities Much train across the engine switch conflict, flagman, confusion has resulted from this operatives acted as one of the practice essentially from the involved and since the one of different west frequently in spe which the trial of same In arises of the train. ward movement cases, cial a restatement of engine pushing two motor former the street; court thereon we it 'the views this think ahead of across coaches appropriate. two in the latter the coaches were whereas by engine, being pulled which was Prefatorily, it be held in mind should street, the being coaches backing across statutes, generally accepted construing engine. A brakeman on to the east rule, statute, requires into enacted now tender, running board of and the en that, interpretations, the court “in all shall proximity relatively close to the gineer’s diligently Leg- look for the intention of the train, extremity of moving would islature, west keeping in at view all times the finding pre law, remedy.” additional the evil old R.C.S. flagman required. caution of 6. art. subd. unnecessary in this We think con- it application peculiar This rule has to do more than cite the case nection to regulating the procedural statutes manner Ry., 228 S.W. Tisdale v. required per in which the courts are Powell, Judge writing section B of the functions, objective official form their Appeals, very exhaustively Commission litigant as of which is to secure sim subject this reviewed the authorities both in this state and expeditious ple, prompt, and determination jurisdictions, other is consistent with fair as of impartial justice, Supreme including the federal Court. prac reducing as far subject (each issues this delay expense minimum the tical to a incident to reversal “Yes”) of which was answered follow: and new trial. you preponderance spe amended the Legislature “1. Do find from a In prudent (then article ordinarily per- statute now the evidence an cial verdict provide that: kept 2190) so “The son would article maintained flagman or issue shall not be watchman railroad failure submit cross- party judg either the case to submit reversal deemed issues. unless error appeal writ of or in writ requested has been amendments, its submission There have been some later judg complaining of party here, and leave are not involved error, is an writ of Upon appeal or ment. provisions. unaffected the above requested sue not submitted 21, 1920, Fly April con On Chief Justice cause, deemed shall be wholly apply strued article not to toas a manner court in such unsubmitted, independent separate, there is provided judgment; grounds recovery, so as to warrant Chap. finding.” sustain such evidence to assumption of their of an Leg. Sp.Sess. 25th p. 15, Laws 1st Gen. otherwise erroneous favor this act emergency clause In the plaintiff. language employed to he in- much “The fact that was asserted that: express this was: “It [article delay accrue to intolerable convenience and simply means that where a has 2190] tendency State, in this litigants passed on certain issues as to a certain and crowd prolong litigation them, case submitted to if there be evidence courts, for the dockets and burden necessary as to other matters connected simple authorizing law want jury, with the issues found *5 decisions of expeditious for the method be deemed that on such court found by special questions of fact controverted judgment.” matters in order to verdict, imperative public Tracy neces- creates an Public San Antonio Service Co. v. sity,” etc. 637, (Tex.Civ.App.) 221 S.W. 638. upon commenting In the contention that law,” in the “old Under independent grounds of unsubmitted recov- be com- must order to article, ery presumed, under the would be itself, every plete embodying element es- in judgment, dis- found defense; recovery or otherwise it sential to “If tinguished Chief said: insufficiency ap- on might be attacked for Justice separate negligence, allege tiff can acts of peal, objection been made although no had acquiesce in the submission one of Nothing court. toi issues the trial then jury, them to sustain the ver- The presumed. resultant “evil” was as was upon negligence dict emergency in the clause of the 1897 stated pass, pre- jury did not but which it is “remedy” require objec- was to act. The by judge, jury sumed found trial was which, court, absent tions in the trial farce, would and the ultimate de- become a by presumption. supply essentials omitted grounds neg- cision on to other facts as required In 1913 further amendment the ligence'would judge.” rest with the general special) charge (whether to be published, opinion was Before this jury argument, to the before after read 9, 1920, Appeals, on Commission June respective been submitted had effect, opinion to the same down an handed objections objection; “and all Transportation City Co. v. Win- in Texas * * * not so made shall be considered 542, 541, ters, holding The 222 543. S.W. 59, 113, 3, Chapter p. as waived.” Gen. § power “The thus stated: was that case Laws, Leg., 1913, present Reg.Sess. 33rd findings, substitute its the trial court article 2185. by jury been made where none placed spe- act both This up- of a does not admit substantially upon cial verdicts the same recovery independent ground of on an footing requiring objections to the alleging urge. it does not which the appeal, charge, to be availed of on to be case, will the issues submitted In such in the court before the charge made trial only grounds embracing treated as jury. to the The was submitted manifest had; recovery the failure can nonobjection purpose was to construe to the issue not submitted plaintiff to tender an acquiescence charge in the mode and be treated as a waiver or the'court submitting the manner of case to the thereof.” abandonment proper submission of the as a controverted Greenwood, opinion by Mr. In an Justice in the case. issues 1924, 28, Tracy in the on June present (1913 approved following in the lan 2189) The same act article was Case conclusion is further amended issue “No other warranted guage statute : judge, upon that defendants in error authorizing case than his own in this motion, recover, under requiring him the law of waived
92? in evi both Citizens’ facts Nat. Bank v. Com- applied controverted Texas as dence, press Ormsby jury in answer Co. v. by the Ratcliffe. save as Texas question submitted them. The distinguished jurist, author and 237 (Tex.Civ.App.) Drug Co. v. Cadwell Speer, Judge in his able and exhaustive 976; Antonio Pub. Serv. San S.W. [968] treatise on Special Law Issues 221 Tracy (Tex.Civ.App.) S.W. Co. v. (1931), Texas takes with hold Conn, Kirby Lumber Co. [637], 638.” v. ing Ormsby v. being: (1) Ratcliffe as 114 Tex. 263 S.W. 905. “Directly contrary to the decision in Moore Pierson, opinion v. in which writ opinion ten Williams at a time Justice by Mr. S.W.(2d) Tex. Pierson, Justice Supreme composed Court of Chief 11, 1928, was written January Gaines and Associate Justice for writ of application Justices refusing an Williams”; (2) Brown and clear “a reads) : “It is opinion error, (the because instance of unwarranted interference one issue to be to write advisable deemed in legislative prerogative.” criti Such case, there seems inasmuch as high not, cism from so should a source we in the Courts confusion considerable think, go unchallenged. The author con very able among some Appeals, and Civil practice cedes “the state, cer- relation lawyers Supreme at the time before the Court and construction practice and the tain rule Appeals in the Commissionof several cases 2190.” of article importance which accentuated the de Winters, Conn, Tracy, holding in the matter, termination of the knows and he cases, including Citizens’ and several other that the decision was not made without a Compress (Tex. Co. Texas Nat. Bank v. (Italics most unusual ours.) consideration.” (to which we will Civ.App.) 294 S.W. Supreme is manifest expressly approved in advert), later *6 carefully Court had before con it and most rule: “When following announced expressed sidered in the views each of complete ground a issue constitutes omitted these criticisms. Had the court felt that defense, recovery, complete a fail- a or way any its decision conflicted with request submission of issue a ure to Pierson, sup Moore v. it’is unreasonable to recovery or said said waives pose wholly that would have it silent been ground of defense.” always subject. While with re luctance, the court has not hesitated to large to was “confusion” adverted The impelled its former overrule decisions placed by due a construction measure duty; nor, thereto sense of a in so do of the and members bar. some of the courts frankly, deferentially, ing, though to con Pierson, 100 Moore v. the decision cede conflict in decision. brought Tex. S.W. holding in that case conflict with the Ormsby Keeping in mind the well-establish This asserted v. Ratcliffe. conflict decision rule .ed urged upon strenuously rehearing in was authority, and its not the constitutes Compress Co., Bank Texas Citizens’ Nat. v. reasoning particular or course wording disposed above, thus of: and was there abstract, or, opinion, taken in the of the in Moore expressions Case “There are the “decisis” and not expressed, sometimes opinions, of other both and in a number opinion; that what the the “dictis” Supreme Court and the Courts light says construed must be court which, generally Appeals, taken Civil specific question to the in reference of and may abstract, be construed as con- in the decision; we are unable it for before holding in this those trary our holding or decision in Moore construe it; support but an cases cited any bear having substantial v. Pierson question before the examination Ormsby relation to that or Case, and in Moore each of in the court it. than other language appar- general whose the cases was suit for Pierson dam- Moore v. contrary, will disclose the fact ently to the separate trespasses, upon two each ages presented here and in that the only separate ground not constituting opinion original in our was not cited cases independent recovery, an unrelated court.” S.W. then before Plaintiff submitted of action. cause page 340. embraced charge which both of general these requested strenuously trespasses. conflict Defendant This asserted request verdict. Plaintiff’s applications for urged in the writ error issue denied, presented issue, The granted. defendant’s error was regards thereupon court one of there warrant for the conclusion that entirely trespasses, opinion the other. charge omitting authority holding for a objection regardless Plaintiff to the made no of such error the must previous request gen- affirmed, other for a than his be provision, under the “deemed as found” charge. jury findings eral and the merely The because defendant had of) against (not requested in favor not submission of the omitted plaintiff, aside, appeal to set seeking who was Clearly cause of action? no such state of “support” judgment. facts analogous pre- state of facts was Supreme plaintiff’s request Court held that Supreme sented to the Court in that case. submitting both tres- charge Had sonably presented, such case been can it rea- passes could as- a not be construed supposed be that the court would charge to submit in the the have judgment upon affirmed the jury find- trespass therein omitted the court. The ings which assessed damages for one tres- opinion language of the contended to em- pass, upon a “deemed finding as found” body in conflict with v. such damages upon wholly different tres- employed Ratcliffe in connection with pass, injury producing way in no referable objection charge an “to the that it excluded or trespass? related to the submitted And from consideration of the the yet, precisely this is what the court must cause action asserted for the second circumstances, have done under the if its and,” court, trespass, says the “that it did decision be construed as conflicting with plaintiff so cannot be denied. But the not has Ormsby v. Ratcliffe. put position himself in raise that Let us consider for the moment the effect objection appeal.” then dis- court statute, of this contention. The it should ques- cusses the 1897 act as related to this noted, is not dealing express find- Commenting tion. on the first sentence of ings of the judge, but with unex- above-quoted portion act, pressed findings supplied by appellate unrequested effect that failure to submit an court in judgment. pre- If reversal, issue shall not be sumption of the judg- says alone, court that if this sentence stood require be construed to an automat- ,of might susceptible interpreta- “it ically presumed or “deemed” affirmative applies only tion that omissions to finding in of an unsúbmitted inde- submit, positive *7 and to withdrawals of pendent ground recovery of (or defense) issues, might or a refusal to submit and ad- independent or cause of (as action in application mit of the of the old rule of Pierson), Moore v. then necessarily the practice required special requests which to presumed finding arises at the time the supply omissions, posi- but not to correct judgment is rendered and not at the time tive and affirmative errors. But the last the charge given is jury; provision for requires appellate until the court to judgment the rendered, it cannot requested an issue not treat submitted or known in whose favor the omitted by found issue as so the trial court as to sustain plaintiff found. The (or defendant, judgment, the if sup- there be evidence to the might be) could afford, well port finding.” such a language This fact it would be to his decided advantage, used in disposing part of an effort the request grounds to one or more plaintiff of losing to obtain recov- reversal of a ery defense) (or which the court against had judgment ground him on the omit- (or ted. defendant plaintiff) erroneously the trial court had would omitted put to the of running dilemma special the charge, thereby from a risk of by losing the case inferentially requesting jury, refused to the submit to the sub- mission; or, by it, requesting independent of alleged one of his conceding causes of action, that the evidence was although complied sufficient he had not to with statutory recovery (or the of requirement the defense) that he un- make error, der the doctrine request written of invited therefor. The holding which regard obtained in this as to substance was the same as that in ver- prior the plaintiff’s v. nonrequest to the effect dicts to of 1931 (Acts amendment Leg., Reg.Sess., p. 120, amounted a waiver 42d to of c. the 1§ cause jury omitted of action. If the find- 2190]). Ann.Civ.St. art. This [Vernon’s ing plaintiff’s had been in favor on construction the of the statute is sometimes submitted, cause of action upon appeal proceed upon theory contended to the by parties defendant it were held that by implied reversible agreement with- jury factually, sufficiency tion subject from the evi- the omitted of drawn factually of its dence necessarily in all would be considered and submitted who judge, as a of phases and elements to trial matter law. thereby (or, verdict privileged, after the necessarily These results would follow for ei- before?) quere, to decide the matter from this construction of article may the evidence party as he conclude ther Fly aptly construction Judge which has theory, the trial preponderates. Under this criticized making jury trial a farce. wholly disre- judge would be authorized to submitted, We verdict have never been able to find gard the the issues anything find- language own to and determine the case his article purpose warrant wholly grounds such construction. Its ings regarding unsubmitted provide simple to recovery fact, expeditious” pro it would “a or defense. In duty, theory, weigh finding to ceeding jury be his under this fact under method, grounds, on the unsubmitted to re obviate evidence by judgments, correct accordance versals otherwise and render thereon, supplying untrammeled find conclusion omissions essential his own fact jury’s findings ings, on the submitted is- where no had been made for submission, omissions, nothing procedure their There our which under sues. law, agreement prior could advantage which inhibits be taken jury part appeal, although of the case from not urged withdraw in the trial factually, leav- judge court. deemed and submit “Issues found in jury. judgment” matters to be decided other relates to the preceding sen is, however, nothing would There tence which obviates reversal because violence to the intention of do more actual “failure to submit” some “issue” essential nonrequest litigants than to judgment. construe their supply It was to agree- into submission an affirmative prior for which under omissions but the omitted fact ment to submit must law be reversed for in theory defendant judge. Under this sufficiency finding, regardless of its cor case) avoid negligence in a could (say nothing rectness otherwise. There is contributory pleas trial language the article or emergen and obtain a decision thereon negligence, cy suggest purpose clause that its judge, after ver- positive an adverse render harmless reversible errors primary negligence'. dict to his own seasonably charge had been pointed prop out in the trial court and theory pre- (automatic the other Under erly preserved appeal, by presuming an sumption finding finding upon wholly some un- affirmative judgment), the deemed is made to recovery independent depend upon jury’s findings upon other defense, unrelated those submitted wholly recovery grounds unrelated upon. Such construction would fact, or defense. As a matter of the un- theory long recognized do violence to *8 requested grounds recovery of or defense doctrine, by upholding judg of the usually entirely sight either of on are lost theory wholly upon foreign ment to insignificance of their relative account upon had been rendered. it evidence, par- or abandoned because the regards ty asserting them the evidence in- article 2190 does not That admit them; support and the effort to sufficient wholly of the construction unsubmit- judgment appeal to independent grounds recovery ted of or de finding theory afterthought. is an deemed found in fense are deemed of an duty appellate court, this under is, course, otherwise erroneous of uphold theory, would be to er- an otherwise open question. longer no an The decision upon judgment, of roneous evidence how- Ormsby legislative v. Ratcliffe has had questionable character, ever doubtful or sanction the re-enactment of the article regardless of how strong and con- any change regard. without in this be, vincing conflicting might evidence subject, however, The discussion of the is provided there was some of evidence suffi- introductorily apropos appel probative cient force to an af- predicated lant’s contention above which is firmative the unsubmitted upon a construction which some of the ground. The losing party below would Ormsby to given cases have v. Ratcliffe and deprived even be his to have the holdings. other like This construction de Appeals of Civil ques- Court interpretations placed review from rives ex- submitted, instructing the effect been so to of the cases pressions in some jury they if found in upon whom favor party duty of the is that the burden rests tiff the facts in the three detailed other- to “issues/’ ren- quoted, they should issues above then examina- A careful wise are waived'. bur- plaintiff. der for the “is- will disclose such cases tion of to placed den defendant separate would then be or the sense sues” was used in point issue or objection the omitted recovery out or de- independent grounds crossing. unusually element of hazardous component fense, sense of not in the presented objections “All not so made and Only ultimate grounds. of such elements is shall be considered as waived.” There recovery or de- to essential issues fact controlling an essential distinction proper be submit- required or to fense are respect of re- ground this between an entire the stat- and to construe jury; ted to the component covery ele- essential and some of re- effecting a waiver of ute as only thereof. Entire omission covery of the omission or defense because (cid:127) precludes thereafter being urged former its component element unrequested of some as well destroy altogether. the statute thereof Where, however, ground is asked, verdict. For, what may pertinently be is- submitted, erroneously or incom- however to be deemed would then left sues pletely, thereby put upon are Manifestly, judgment? support of the nonessential, jury’s notice that the to the issues answers or only those actually submitted form the basis of evidentiary. being issues not purely Such court’s thereafter to be ren- essential, supply them to enact a statute duty dered thereon.' It then becomes point- finding would be by presumption of party point each out errors of omission ; sought to be remedied the “evil” less and commission, estopped or or be held from in full force would remain the statute urging them. Nor is this an un- thereafter vigor as before. duty It due burden. is as much statute, may argued that since the plaintiff (and versa) as of vice defendant places as construed applicable to know the law to the is'sues party urging it to re- the burden judg- which are submitted the basis of a recovery quest submission liability impose against ment which will defense, a like burden should extend to or him, findings if the thereon are adverse ground; every essential element of such Legislature him. For reasons which the opposing that the should be re- salutary, requires deemed the law him to waiver, penalty supply, quired, under objections make his at a time when the them, by requesting elements essential cured, error or omission can be and the ex- case; adversary’s his that he should be delay pense and incident to reversal there- silently by “trump permitted to sit with a by- remembered, avoided. It should also be sleeve,” up speak, and his so to after card connection, in this alone the liti- verdict, jury has returned an adverse vitally gants expense are interested in the over,” game “the and it too late They portion litigation. bear it, anything about to do obtain a new large part expense. this A borne issue; of the omitted trial on account county. Especially is this state true not his or affair to it is business instruct trials, pays only litigant wherein the adversary’s attorney in the correct case, county per pay and the has to $5 adversary’s case; trying such method per day, regardless the rate of $36 supply by pre- that to such omissions or duration of number trials. what Of *9 puts sumption premium finding a litigant deprived is the substantial ignorance prepara- and carelessness urge objections requiring him in the cogent for trial. However tion of cases requirement per- court? The same regarded arguments might be if di- these the introduction of evidence. tains to policy against rected or wisdom of the article, weight no necessary, think, is not we to go statute, of the the effect construction holding that where .no .is extent it, nullify prac- which would be for all liability only regarding sue the issue completely purposes, and frustrate tical submitted, damages is amount objective legislative in its enactment. be deemed found in former will was, policy (article a.charge in 1913 judgment. The same Such is tanta adopted regards verdict, general directing 2185), leaving mount only assume this charge. jury Let us that case had the assessment of dam- Brick The ages. Expressions judgment in North v. Atlas trial court’s is reversed 59, sus- and the S.W.(2d) cause (Tex.Com.App.) Co. remanded. view, clearly ceptible contrary are Reversed and remanded. peremptory is not obiter. A instruction objec- charge, proper sense a On Rehearing. Motion for Haley, required. tions not Walker v. are Appellant judgment should asserts that 295; 110 Tex. Citizens’ Nat. S.W. favor, be rendered in its instead of re- Co., Compress Bank above. But v. Texas This, manding the cause for newa trial. where which are clear- issues are submitted upon substantially proposi- following ly specific ground of referable to a recov- tion: ery, purpose is the manifest stat- charge ute that omissions in the will .be The ap- verdict was for it on all of supplied by presumption finding, where pellees’ grounds recovery except supporting there is evidence. flagman failure to have crossing; at the and since an railway essential element of following The filed ground objections submitted above-quoted special not and not re is quested by appellees, the sues verdict would not : judgment appellees, for Special “7. To the 1st Issue for therefore the trial court should have ren reason that the same inis the nature of a judgment dered appellant, upon its mo general charge, is not warranted tion for judgment. case, pleadings in this is not warranted Appellant case, propounds duplicitous the following evidence in- quiry regard: in this weight multifarious and on the of the evi- dence, assumes a controverted fact “Suppose Judge the Trial in this cause case, proper and is not a submission of the jury verdict of the as actual- sought element therein to be submitted. ly received, had rendered judgment proper Same does submit the findings below, suppose defendant necessary predication liability for the tiff excepted below had to the rendition of particular and in crossing character of judgment and this case were before an answer thereto would not constitute a this court in favor of the proper liability upon test of this defendant. defendant with plaintiff appealing therefrom, Special “8. To the 2nd Issue what for each action would this court appeal?” given Special reason in connection take on that with 1st above, Issue for the reason that same in inquiry Our answer to this is that connection with the first constitutes a dual judgment would be reversed. submission. recognize, pointed We out in the Special “9. To the 3rd Issue' for each motion, that there are cases that a given in reason connection with 1st and special issue verdict which omits some es- above, adopted by 2nd here reference.” sential recovery, element objection The first sentence of 7 we submitted and found in other re- think compli- is too to constitute spects, will judgment upon ance with point the statute. It does not ground, although objection no out wherein issue No. 1 is defec- below made to the omission. This was con- tive or erroneous in alleged the various re- opinion. original ceded our This hold- spects. sentence, however, The second does however, ing, in direct conflict with oth- point specifically the out failure to sub- decisions, er which were uniform in this mit a on the “character of the cross- regard up years ago. to a few objection ing.” repeated as to each theory upon which a of re- of the second and third issues in ob- covery findings is that the jections specific 8 and 9. This objection, basis, thereon form the think, we should have been sustained. basis, We also think objection particular Therefore, ground. 8 to *10 the effect any presumed No. omitted element must be but repetition a No. upon in findings constituted of the other dual submission well taken. though is ground. Whether It this would call for upon a reversal it is not had directed a omitted is- neces sary to decide. It should be upon ground avoided of the affirmative of the sue favor appertains. Otherwise, another trial. why to which it compelled appeal pay the and the any upon ground at all? costs of such issues submit Such ultimately losing party the costs purely academic and additional issues would be findings jury’s rule now if, further trial below. The same supererogatory, after liberty party exists has prevailing be where the below thereon, judge would at the trial not requested the submission of the omitted in favor element to find the omitted therefore, element, and, may pointed out in a sense party. As losing otherwise said er- holding would to be at fault and contribute to the opinion, such original our appellant urges ror. In such situation destroy amendment the 1897 appellee penalized, only by should verdict statutes. having pay appeal, the costs of be- importance of termi- recognize We denied further the case. The trial of outstanding objective litigation, an nating injustice of such has al- manifest ready objec- But this the 1897 amendment. pointed been out. It would make others, paramount all over tive is not expedient, procedure perilous mere most way more the latter become give must average lawyer, alone but to impartial trial is a important. A fair imposition equitable most skillful. A more objective; is also prime litigation, by imposing burdens by jury upon the facts. The decision trial expense delay upon and further trial pre- was essential to v. Ratcliffe it, party responsible might be devised. party losing in the rights these serve present proce- But the mere fact that our holding that an omitted trial court. The injustice dure in some admits instances of recovery, ground otherwise element inequity regard in this is no warrant submitted, presumed support of must be upon party imposing at fault said issues rights. forfeiture of all his substantial preserve rights of the win- essential We party length have written thus this ning below. matter, because of noted conflict in au- right of review itself conduces to thority; arguments the fact litigation; and prolongation of to that ex- presented frequently now are urged oth- objective speedy ter- tent defeats the er cases before this court. regarded, how- litigation. mination ever, justice, to the ends of motion is as essential overruled. objective important higher and more than Overruled. terminating speed litigation. alone in A expedition, proper balance between on the hand, preserving one the substantial other, litigants, on the rights of judicial paramount goal toward which strive, should ever administration however may attaining short it fall it. Banking BRAND, Com’r, v. FERNANDEZ Expense litigant of further trial et al. unrecompensable not at fault one No. 9599. damages or inconveniences incident to liti- gation in this at this state time. Taxable Appeals Court of Civil of Texas. San in the costs of errors committed must trial Antonio. necessarily litigants. fall In so Oct. 1935. appeal concerned, are far as costs Rehearing Granted and Cause Reformed fall the one whose favor the Affirmed Jan. 1936. (the prevailing party error was committed party appeal). losing below or This is Rehearing Amended March 1936. appellee may although true have done power prevent everything in the er- example, in the court. For ror both submission a certain ele- recovery otherwise The trial submitted. court takes the view the evidence is conclusive as to such element, requests. and refuses both If refusal should constitute such error, reversible prevailing below would be