*1 correct for court was of the trial opinion, and in this reasons above importance deter- point is of no appeal. mination of action

We believe the instructing a verdict

was correct in appellants

rendering judgment suit, judg- nothing

take their accordingly affirmed.

ment is CO. CAB & BAGGAGE

YELLOW

GREEN.

No. 15490. Appeals of Texas.

Court of Civil Worth.

Fort

April 16, 1954.

Rehearing May 14, Denied *2 vehicle, in which collision

and another taxi, plaintiff, sustained passenger a personal company injuries. The defendant appeals.

Judgment affirmed. widow, in Appellee, passenger was a appellant’s taxicab on December approximately M., it was at 6 :00 P. when City of Wich- involved a collision in the Appellee ita Falls. that she sus- claimed arm, leg, injuries right tained to her back, injuries and as well as to her nervous system, except injuries, all of leg, arm to the date persisting and down trial, subsequent some four months Her claim date of the collision. injuries that as result of such she was completely totally from and disabled work, the in- doing kind of and that juries pain. It wa9 devel- caused severe oped during the course of the trial that pellee previous suffered disabilities had operations prior and infirmities result of appel- to the time of the collision and previous lant disabilities claimed that such infirmities and caused the nervous condi- time tion from which suffered at trial, and further claimed any injuries if result she did sustain injuries collision only disabilities, aggravated the infirmities prior and nervous condition existent and the time of the collision. Fillmore, Jones, Clyde & and Parish Trial special and all the Falls, appellant. Fillmore, for Wichita favorably issues submitted were answered appellee, judgment and the entered Falls, appel- Napier, for E. Wichita W. thereupon awarded her her lee. injuries. Special connection with Issue No. MASSEY, Chief Justice. issue, which was the damage the court in- judgment we entered On March structed the as follows: “In answer- reversing the Issue, foregoing you will into take the cause for remanding another trial. and only consideration the following elements: study of the case After further on motion Physical pain and mental suffering, and if we have come rehearing, any, which Mrs. Green has suffered Jewel doing. that we were error in so clusion trial, the time of physical hereby opinion is The former withdrawn pain suffering, any, and mental if following substituted therefor. Green, will, Mrs. in all reasonable Jewel plaintiff Judgment in favor of probability, was ren- future; suffer and the loss growing suit if earnings, dered collision of from the date of col- company taxi of the defendant trial, between lision the time of this and the rea- .521 supply of an-ex- capacity, an omission of element reduced her value sonable future, special planatory instruction to a money earn any, to labor ma- was of an element and where such omission capacity to labor that her you find Speer, party’s action or defense. terial to probability, will, reasonable money earn *3 Issues, 249, Special Law of secs. will You future. in the be diminished Authority effect that to the and 288. pain and any money any sum allow for sufficiently specify the er- objections earning ca- earnings, suffering, loss of appeal, stem- preserve on ror will to be except you those pacity, find Gulf, in the case of med from the decision neg- by the caused proximately directly and Conley, 113 Tex. Ry. & S. F. v. C. Co. herein.” any, ligence, defendant if Under 32 A.L.R. S.W. ours.) (Emphasis that Rule date authority, until the this and Special the submission objecting to 279, T.R.C.P., became effective particular as to the No. and Issue what doubt but have been no instruction, appellant stated explanatory urged maintain error entitled to would be objection: part as of its explanatory instruc- instance to the un- * * which is Issue No. Special tion of objects for the fur- “Defendant goes. doubtedly far as it correct as evidence raises the is- that the ther reason plaintiff’s mental and that a sue authority preservation er Further for disability, any, if physical suffering and ror such circumstances is case of infirmities, physical prior attributable to Ector, Ry. Terminal Dallas & Co. conditions, none of diseases and nervous Tex.Com.App., 131 Tex. 116 S.W.2d nor are attribu- which had connection appears 683. In that case and table to accident jury as to court had instructed what jury in connec- Court should instruct consider in a case where elements it could Issue n No. Special tion with not to dispute parties there was between as physical anything and sider nor allow for prior infirmities contributed degree to the pain suffering of earn- mental and or loss incapacity plaintiff present of a in a to the ing capacity in the because of past, suit, injury personal instructing the infirmities, previous physical and diseases damages for such that it could allow suffer plain- condition, any, nervous disability directly ing “resulting and had, aggravation not an tiff which was injuries” plaintiff proximately from * * question; the accident *. in the collision with had sustained the de “* * * objected The defendant fendant. substan objects Defendant further tially objected as the here in the 23, written, excepts Special Issue No. Appeals, The Commission trial court. permits because it to award dam- Judge Hickman, pointed speaking through disabilities, ages pain, suffering, for other out that the defendant was entitled to an labor, incapacity infirmities and work defenses, presentation (in affirmative money, and earn attributable to and caused cluding compensatory the defense to dam diseases, infirmities, by previous and nerv- suffering disability in ages for so far conditions, physical and does not ous prior as such attributable infirmities affirmatively relegate and confine the re- injuries than to the resultant from rather only that covery damages to the extent special collision) and that since the issue diseases, previous said nervousness and in- plain was an issue aggravated were affirmative firmities result of the itself for than rather a defensive ques- injuries sustained in the accident in tiff defendant, was under no defendant tion.” curing request an issue de defect Prior to the date of effective Texas Rules finition, preserved upon the error was —and objection of Civil Procedure an objection. appeal form of specific objection, court’s as an that the noted for a reversal without It is the fur- sufficient shortly prior presentation date request Ector case was ther a formal if the upon by op- Procedure. issue is one relied Rules of the new posing im- party.’ rules unchanged unless these law is complaining posed 'burden greater present practice party may “The treat- that the-Ector party. It is noted point by save the a mere “de- complained of as a ed the omission proper failure submit a ex- fect”. planation pertinent definition to some cir- under the question is Our term of technical meaning contained pre- is entitled to rule, cumstances charge. chang- court’s The new appeal. error, practice point, serve on will make it not, as not in com- Appellee necessary contends finds who fault *4 ques- Our T.R.C.P.

pliance with with the failure of the court to submit a posed be were would that which tion is explanatory not definition or instruction to re- explanatory in the quest substantially of the court the words correct definition or defective, no for there is plainly explanatory predicate instruction as a phrase or affirmatively section appellate it, erroneous complaint, I and as read could com- requirement the instruction holds good whether incorrectly the law plain missing explanatory or instruc- definition question one which question Neither is our tion stated. relates to a material to the an omission posed were complaining party’s be theory would the case or appellee’s affirmative of the ingredient to the other party’s theory some material connec- necessary to be considered'in (Emphasis case.” ours.) case 20 T.L.R. 38. fact which the any finding of See also Franki tion with on Vernon’s Texas Julius be considered an- Procedure, Edition, insist Rules could pellant Civil support page swering explana- The omitted against it. ' explanatory Now there is an by appellant was desired tory instruction appended Special to No. 23 of the Issue exclusionary in- affirmative actüally charge. explanatory court’s The instruc- appellant’s de- material struction sets out all instruction desired entitled, as a appellant was The fense. might as of his case. affirmative exclu- law, have an matter of it considered that sets out an instruction damages, if elements sion purporting to cover the affirmative defen- prior in- been attributable might have appellant. Appellant ingredient sive of the right raised firmities, his properly he complains does that it not do so and insists thereto. it is insufficient and defective because prospective insufficiency. clearly discussion It is not de- In his Rules wrongfully New instructing jury. fective as effect use Dooley, Procedure, a member Judge B. exists in it at all would be J. If fault Committee, stated Advisory protect his con- insufficiency its a de- appel- T.R. right appellant. effect of to the clusions fensive words, protect appellant’s lee C.P., as follows: owed no de- regard rights in fensive matter at present practice retains rule “.The. duty only issue. The court owed standing appellate party has no that a compliance appellant, in with the Rules that the trial court ground complaint on Procedure, of Civil called to the attention material to submit an failed provided in the -of court manner therein defense, un- ground of action cause or. right by him. If he did asserted not do requested said issue in sub- the. less. so, he waived the to claim then court, wording in the stantially, proper because thereof. requirement qualifies rightfully but however, T.R.C.P., provided, is In Rule ‘provided, objection adding: “ * * * respect Failure submit a shall suffice definition failure to such ponent’s opponent’s theory (under not shall explanatory instruction prosecution judg- of defense), and which for reversal ground deemed affirmatively not de- substantially defini- erroneous and correct ment unless fective in language, re- where com- but has been explanatory instruction tion or plaining party desires ad- that instructions tendered writing and quested ditional already given those be incor- judgment.” party complaining porated in supplement present- thereof provided, “A T.R.C.P., In Rule complainant’s material elements of the must to a party objecting theory opposition opponent. to that of his objects distinctly matter to which We have reached the conclusion that Any objection. of his the grounds operate, 279 does so present and that in' the instruction, issue, defini- complaint as to an case the made instruction, on account explanatory actually tion or request constituted a to the trial plead- omission, or fault any defect, give additional instructions that specifi- unless waived ing, shall be deemed thought would be beneficial to * *” objections. cally it, included complaint that the instruction *5 ours.) (Emphasis operated given place greater itself to a t upon appellant burden than the law re- Dooley’s quired. In Judge appellant conclusions Despite view thereof the lost T.R.C.P., de preserve Rule to error the to the effect because of' the effective subsequent give to court’s failure to the cases additional and cisions that the- supplementary it clear make Rule instructions the date of said desired, obligate a operate so as to perform because not Rule does not did any requested to, tendering to the party submit the court complaining in writ- an if there is trial court the instruction he to wanted court to given kind already add to what explanatory instruction was given. ele material which embodies charge in' the Durham, In opponent’s the case of Hickman v. theory his ments n Eastland, Tex.Civ.App., defense, if prosecution or S.W.2d e., writ n. refused r. a suit party’s objection is directed-to was complaining which damages against for an officer af because of something in the instruction which is assault, gave erroneous, an the court "to firmatively is an'instruct! on defective be-' jury relating to plaintiff’s,right'of omission of some element of the cause necessary and when would be inclusion self-defense not' therein it which objected-to the available. The defendant opponent’s proper is to be borne burden instances, it tell complaining instruction because failed to further' by him. In such appeal right to be that actions conduct of party protected has his at the time would of error if he has defendant arrest character cause provoke merely given difficulty to definition calculated to objected a objection pointed acting where defendant during the course was an offic capacity ial making inclusion an language because arrest. The court pointed prejudiced, though out held it was he is of which must be included if he the defendant was language charge entitled to a attempting prejudiced. he was a is not ar .make lawful rest at the time of assault would not provoking difficulty, question be it squarely presents the affirm This plaintiff Dooley his Judge was correct in obtained of whether in the trial operate court because of Rule Rule 279 would T.R. conclusion The court’s party language C.P. was as complaining to submit follows: obligate a n (cid:127) “However, being charge in an court defendant requested instruction him, thought would be explanatory there an beneficial it where instance court, upon ;him incumbent submit to em substantially correct instruction op- covering material elements bodied requested party in tion omits elements which a No the case. phase therein, court, objec- an there siders should be included tendered struction was ” * * * preserve any error does suffice to fore, not shown. error complainant a desired in- must tender case, supra, v. Durham Hickman In the provisions of writing struction in under squarely that the held the Eastland did not turn The case T.R.C.P. reversed if should be one which case was involved, upon and it is here preserved his had party complaining premised its merely au- cited because tendering to error complain of right to thority for above statement requested instruction. proper the court Indemnity law the Great American to reverse refused case, supra. Co. v. Sams T.R.C.P., did provisions of The Su- preserve the error. not suffice Employers’ In case In- of Texas application Court refused preme Mallard, 1944, surance Ass’n v. 143Tex. "no revers- found writ error Hick- Chief Justice either “ Eastland court was ible The error”. * ** man, Commissioner, said, then holding in its correct been to have found applies when is a failure to exist was not it believed that the definition, applies while Rule 274 submit a been to have cor- found preserved, or was actually when definition is contained judgment because the affirming the rect in charge, complaining but the ob- the instruction believed Supreme Court jects to be thought to it because erro- satisfactory. ” sufficient given was * * neous. in the case now under consideration relies Judge Indem American of Great *6 the language Hickman’s to substantiate its con- 176 142 Tex. Sams, nity v.Co. charge tention that if any contains in- the Work a suit S.W.2d all, at struction then error preserved by brought. In Compensation Act was men’s objection alone requisites and the as to re- of were definitions the court prescribed “ questing ” instructions “ ‘pro incapacity1 and ‘total the terms 279, T.R.C.P., are of no consideration. company ”. The insurance ducing cause’ this we believe incorrect, be given. The objected the definitions ob for it is noted opinion later on in his jury effect that jection was Judge says Hickman that in the case he was disregard all testi be instructed should considering respondent up- was relying pre-existing certain mony relating on the case Great Indemnity American Supreme Court stated that disability. The Sams, Co. supra, v. he (Judge by the trial court given were the definitions Hickman) deems his holding to be in har- appear correct, therefore it “ * * * mony opinion. said, with such He objection took. How form the what matter This is reflected by a consideration of the opinion set forth Rule T.R. ever, the opinion whole, as a particularly and more provisions C.P., applied stated language which the author pre would not be any error existent opinion was employ: careful to ‘Thus of a tendered instruc the absence in served is seen that the insurance carrier was not stated, appellant. It also “Thus objecting to given definitions insurance carrier was not that the it is seen court, trial but was requesting the trial given by definitions objecting to the give court to additional instructions which court, requesting the but was trial the insurance carrier thought would be instructions additional give court to ” * * * it.’ beneficial to further thought carrier would be the insurance Judge noted from Hickman’s to it.” beneficial that he held that the instruction which was Railway given Dallas & in that Termi- case of term In the case “total inca- Enloe, 1949, Tex.Civ.App., pacity” greater Dal- conferred a burden upon nal Co. refused, e., company writ n. las, the insurance than required r. by law, required that where standard defini- and that the said the court company’s and all the elements of thereof, contained material reversal complainant’s opposition to theory T. in provisions objection under upon opponent, whereby com- the case of his predicated part R.C.P., having in been plainant would not been entitled have ground. he the further and additional Pon- v.Co. of Russell Const. In the case event, ma- desired in then least the Beaumont, 182 S. der, Tex.Civ.App., jority Supreme of the members of the Supreme by the 857, 861, affirmed W.2d preser- it prerequisite Court has held to a n Court 412, 186 S.W.2d in 143 Tex. in 1945 in vation of error these cases that an addi- in- objected to an defendant supplementary must tional gave to the trial court struction which requested Such writing. tendered they might upon what elements express was the Eastland holding of the arriving at the amount sider Appeals. Court of Civil n tothe of a the death plaintiffs because of objected Chief Hickman seemed to child. defendant minor Justice prove principle law in his discussion form of instruction standard Indemnity Company should have of the Great contended) the trial court American (it course, case, supra, they “that could v. Sams during instructed .also damages, but his discussion Employers’ of said Texas In- as a not consider therefrom, case, of edu- the cost Association supra, surance v. Mallard should deduct arriving Then, at the minor” in seemed to have cation of The Court disapproved pecuniary during services. the course of his value error, if held Appeals discussion the Russell Pon- (cid:127)of Const. Co. v. T.R.C. supra, in view when preserved der he stated that he dis- event P., agreed there was but that no with Beaumont Court of Civil requisites of Appeals appears instruction met -since the to have relied Supreme Upon this principle. such as established law. Since Hickman, then a (through Chief ultimate decision none of these cases Justice holding (cid:127)Commissioner) set turned and since the ulti- n Courtof Civil Appeals upon mate decision Hickman v. *7 said, preservation and Durham, supra, question an error had been did turn the * * * question we do not opinion As to that of the the Eastland Court Appeals that the of Civil .agree Appeals with Court we believe that case required petitioner the that it authority having weight. was greatest is the instruction, an since tender opinion, therefore, It is our in- of the challenged the correctness but appellant’s comply * of the failure to with * However, given. struction 279, T.R.C.P., by provisions re- disposed Appeals correctly of Civil (cid:127)Court form the it questing written n of the ground, and its point on another supplement the instruction desired in therefore be .-ruling will affirmed.” by given court in its which was analysis the rather detailed of the From preserve it has failed to the error of n cases upon the of the we are complains. n opinion propo- statements T.R.C.P., appellant complied pro- Had the and when with sition how T.R.C.P., of Rule controlling and how visions and after and when having request, done so had been 'T.R.C.P., refused its controlling, actually constituted n opinion it is our that we would be com- controlling factor de- ultimate only pelled to reverse in this That case cision one the cases. we believe that would -was the one the Eastland of Civil Durham, sup- entitled to have the further supra, in have been .Appeals, Hickman v. plemental given instruction it desired was Unless the instruction which instructing complete jury them to consider in that case full and was 526 Less, D.C.1943, County, Texas, arriving at answer Nueces certain evidence 20; F.Supp. 49 We believe Life Ins. special damages. on Coxson v. Atlanta Co., 1944, sound been on 142 S.W.2d 943. would have Tex. of And authority though of the case even the evidence adduced all

ground Tex.Civ.App., Patton, injured person be to the effect that the will Bottling Nehi Co. v. Galveston, 1940, everyone fully which in the recover S.W.2d months, consid- ground yet we now ed within four the determina the exact considered appears er, reasoning which through tion of whether this is true is a matter sound, peculiarly conclusion that province jury at the within the most arrived insufficiency in the instruc- right and theirs is the reach a conclu there was an require reversal. blending sion all the admitted given which evidence pre- however, them, experience error before aided their own In that not. knowledge subject inquiry and in case the error served, they right apply, have the and to point of er- predicates another Appellant they may deduce therefrom truth though all proposition that upon the ror Louis, believe it to be. Simmonds v. St. B. on evidence introduced Co., Ry. Tex.Com.App., & M. 127 Tex. would be that she pellee was to the effect 332; Belt & Houston Termi injuries within a her fully from recovered Ry. Vogel, Tex.Civ.App., nal Co. v. Gal time from the date period months of four veston, 1915, 179 S.W. error refused. trial, request In view requested thereof should not jury be instructed of limitation would constitute a violation of pain, future into consideration take a matter of exercise etc., except time disability, for four months discretion, its own and no error could re date, Because was refused. trial from the sult from the refusal of the instruction. appellant claims that the thé refusal pain, to consider dis- would be allowed Upon procedure appellant claims experienced etc., which'might be ability, per- error because of the court’s refusal to time from four months after mit him to answer criticism made of his at- in the arrival date torney during the opening course of the period with- future, being a argument because of the absence of a cer- trial, upon the proof adduced witness, tain and because the trial court re- and therefore would constitute attorney stricted. such argument and dis- charge the refusing to so erred cussion of the as to whether or jury. not.the vehicle park- claimed to have been along played ed the street and to have *8 Testimony the extent and part as to in the collision pres- was or was not ent, pain suffering of future and refusing duration him explain right to personal injuries is neces disability from or answer the by criticism opposing leveled lay upon opinion, either or ex sarily based counsel because of the (as absence a wit- testimony pert. as It is therefore not ness) of the driver of only vehicle the fact, contrarily testimony as a con is but appellant claimed parked was ever on necessarily are from which facts clusion proximate, street both place, as to time and part the trier of fact of found as question to the collision. The track in When this office personal injury in a case. which the one claimed was a by performed drawing track White’s Auto Stores n province. conclusion is its exclusive parked which was not nearby at the time of by facts- are in not would be'bound subsequent time, the collision but to such dispute, but it is the exclusive arbiter Street,- on side not of Calhoun east Appellant to be drawn any conclusions from facts but on the west side. had made dispute they by or United no to the statements made are not. 2,049.85 Land, attorney for the Acres of More or the criticism. States

527 right to Rehearing On Motion for party have Does one part reply argument on the make At one our we stated adversary attacks adversary in which Supreme Court, application refusing tes not introduced him he has for writ “no reversible error” in the Hick- not shown timony witness of an absent man v. Durham either or under the control connected with or found Appeals the Eastland Court of Civil reply desiring party domination holding to have been its correct explain the absence such attack and to pre- the error it not believed to exist was testimony? This is the witness and his found served to have been correct the an posed. believe We given by because the as He is not negative. would be in the swer trial court sat- to' the was sufficient and although right and entitled as a matter of so isfactory. reply counsel much latitude is propriety of adversary, argument to his We are well aware of the fact that there opposing coun reply that of argument in many disposed are writs the Su- rests in the sound discretion sel “Refused, preme e.”, Court as n. r. 279; Tex.Jur., p. sec. 41-B court. Supreme disposed might have Court Blecker, Tex.Civ.App., Gal et ux. v. Gross quali- straight of as “Writ refused” without veston, wrong The 105 S.W.2d 282. fication, complain- for the fact but wrong like attorney justify a of one will not party applied applying for the writ by way retalia another on the points the writ on lesser number of than tion, appellate will not although court number ruled the Court of which has aside verdict hesitate to set instances, Appeals. despite Civil In those justified by language, not been induced any opinion by the members of the' Su- record, opposing counsel though the preme reasoning Court that the well as Gulf, C. may given the first offense. have Appeals the holdings of the Court Witte, 1887, Ry. Tex. & S. F. Co. v. per merited their one hundred cent fact that counsel for 490. The mere S.W. proval, refused”, power- a “Writ improper party injected matter into one has express approval less to such an but must opposing license counsel the case does not append qualification instead “no revers- wrong. every in a similar to commit jurisdiction ible error” has the action the court should consider stance only points upon which the writ has attorney each in relation to statement of applied Supreme been for. When the probable upon the D. & effect verdict. empowered to consider all Lavallee, Tex.Civ.App., H. Truck Line v. points that were before Court of Civil Austin, 1928, 7 S.W.2d refused. Appeals, Supreme do best the Court can general affect the rule that This does not the intermediate is to note its one improper of counsel for where remarks application, refusal of the “no reversible call for a such a nature as to are of City Houston, error.” Bowie v. Tex. seem reply, language used does not and the Sup., 261 S.W.2d 450. beyond legiti gone the bounds of a to have perhaps What we should have said jury’s will verdict answer mate Durham our discussion of Hickman v. to two different rules relate disturbed. case, supra, was that since in that instance circumstances, in one of which a set *9 unlikely application highly and in the other the de reply allowed carry for writ of error failed to forward reply In this in was disallowed. sired grounds urged few of error reply The trial was disallowed. stance Appeals, predi- our comments were of Civil ruling. . not err . did upon presumption points cated all the upon appeal were carried forward into the preserved reversible find no We application for the writ of error. appeal. Judgment is on this advanced rehearing is motion for overruled. affirmed.