Negligence of the defendant was by the verdict of the jury found to have been a proximate cause of injuries to Mrs. Lovejoy. The verdict, insofar as its subject matter consisted of the issues which plaintiff had the burden of establishing, contained no description of the injuries. In other words, the particular nature and extent of the injuries do not appear from that part of the verdict.
In addition to the issues which plaintiff had the burden of establishing there were others, one being whether "the physical suffering, if any, that Mrs. Lovejoy has had since October 6, 1934, is due solely to a diseased condition of her body that is in no way connected with the swallowing, if any, of particles of glass." This issue particularized, wholly or partially, the "injuries" which by other portions of the verdict were found to have been proximately caused by negligence of defendant. The finding that Mrs. Lovejoy's physical suffering after swallowing the glass was not due solely to a diseased condition of her body must be regarded as tantamount to a finding that her "injuries" as referred to in the other issues were not due solely to disease. If her "injuries" were not due solely to disease, in no way connected with swallowing the glass, but, as otherwise found, were due to (caused by) swallowing the glass, then what, if any, part of the total consequences of swallowing the glass should be excluded from the total amount to be awarded as damages? There was no evidence of any items of damages resulting from swallowing glass as to which the law does not permit recovery. There was, therefore, nothing to be excluded either in the statement of the special issue or instruction accompanying it.
The principle sought to be applied is not believed to be applicable to the state of facts presented. That principle relates to cases wherein after it is determined that injuries have resulted from negligence as the proximate cause thereof the law will not permit recovery of compensation for some of the results of such injuries. Good examples are death actions in which the policy of the law forbids recovery of damages for mental *Page 265 grief, or suffering, or loss of society, affection or companionship, although they result from the very injury for which the recovery of damages is awarded. Such are the cases of St. Louis S. F. T. Ry. Co. v. Houze, Tex. Civ. App. 28 S.W.2d 865; Dallas Ry. T. Co. v. Moore, Tex. Civ. App. 52 S.W.2d 104; Texas P. Ry. Co. v. Phillips, Tex. Civ. App. 56 S.W.2d 210.
The principle has also been applied in a few cases where the injuries, the damages from which are sought to be recovered, are but a part or phase of certain indisputably existing injuries as to which there is no issue, or as to which because of some policy of the law there exists no right of action. Examples of such cases are Times Pub. Co. v. Ray, Tex. Civ. App. 1 S.W.2d 471; Galbraith-Foxworth Lumber Co. v. Gerneth, Tex. Civ. App. 66 S.W.2d 471; Pedigo Pedigo v. Croom, Tex. Civ. App.37 S.W.2d 1074. In such cases there was no question of damages claimed by plaintiff to have resulted from a particular injury for which the defendant was sought to be held responsible and, by way of defense, claimed by the defendant to have resulted from another and different injury for which defendant was not responsible, the issue having been found in favor of the plaintiff. In this case, had the jury been instructed in such way as to meet the objection to the instruction given, the jury could not have excluded anything from the award of damages without disregarding the other part of their verdict to the effect that the "injuries" (not a part of them) were caused by swallowing the glass.
If although as a whole the injuries were not due solely to pre-existing disease, but as to some ascertainable and definite part thereof, they were due solely to disease (and, therefore, not to swallowing glass) that was, under the decisions, a defensive issue. It was not submitted and not requested to be submitted. It was an issue analogous to the defensive issue of partial, or of temporary, incapacity in a suit by which plaintiff seeks to recover compensation for total and permanent incapacity. There can be no difference in principle between a defensive matter which constitutes a complete defense and a defensive matter which constitutes a pro tanto defense, or, in other words, defense to a definite part of an asserted cause of action or claim to damages. Surely no higher authority for this proposition need be mentioned than those decisions holding that issues of partial incapacity and issues of temporary incapacity as defensive issues are required to be given.
The writer cannot believe the decision in Dallas Ry. T. Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 684, should rule the decision of this case. The Ector case, while recognizing the duty of the court, in a case submitted upon special issues, to give a charge or instruction on the law relating to an issue of (the amount of) damages, no less certainly declares that the only authority therefor is the provision of R.S. 1925, Art. 2189, requiring the court to submit "such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict", etc. It would follow necessarily that if in the statement of an issue of (amount of) damages no legal term was used there would be no necessity for giving a charge or instruction upon the law applicable to such issue. That was exactly the case before the court. The issue submitted was stated thus: "What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably compensate the plaintiff for the physical and mental suffering, if any, of his wife, Ethel Ector, in the past, if you find there has been any in the past, and in the future, if you find there will be any in the future, and for her diminished capacity to labor and earn money, in the past, if any, and in the future, if you find there will be any in the future, and for reasonable and necessary expenses heretofore incurred for doctor's bills, if any, (not including witness fees) resulting directly and proximately from the injuries, if any, of Ethel Ector?" Regarding this issue, the court, after observing that "The most common form for submitting the question of damages in a personal injury case is for the court to call on the jury to determine plaintiff's damages and then follow the question with instructions as to the elements properly to be considered in arriving at the damages," further said: "It will be noted that in the instant case the court adopted a different, andwe think preferable, method of submitting the question by embodying theelements in the issue itself * * *." (Italics ours.) Thus it appears that according to the preferable method of submitting the issue it was improperly stated, in that it failed to exclude affirmatively improper elements. Regarding this, two or three things may be stated as certainties. It is certain, in the first place, that if the issue had been objected to on the ground of its failure to mention and exclude the elements which should have been excluded there would have existed no necessity for explaining or defining any *Page 266 legal term, — none such being used in the statement of the issue, — but, even if there had been, there could have existed no necessity of giving a charge or instruction to exclude items of damages, such exclusion having been effected by the very statement of the issue. In the second place, it is certain that if such an objection had been made and the court had overruled same, the right would have existed to have such action reviewed upon appeal. It is undoubtedly a sound proposition of law that any wrong ruling of a court, not constituting fundamental error, which is not excepted to and not assigned as error, will be waived. Hence there was presented a case of a defectively stated issue, imposing upon the defendant the obligation by objections to point out the defects in order to afford the court the opportunity of correcting them upon penalty for failure to do so of the waiver of the defects. With interest, therefore, we look to the objection that was made. Here is the objection: "Defendant further objects to issue No. 5, because the evidence raises the issue that a part of the plaintiff's physical and mental suffering, if any, were attributable to some kidney trouble which had no connection with the accident and the court should instruct the jury in connection with issue No. 5 not to consider nor allow anything for physical and mental suffering or loss of earning capacity in the past because of so much of the kidney trouble, if any, that plaintiff had which was not an aggravation by the accident." (Italics ours). This objection, it is to be observed, was not directed to any defect in the statement of the special issue. On the contrary, without embodying any such objection, it complained of the failure of the court "to instruct the jury in connection with issue No. 5 not to consider nor allow", etc. (Italics ours.) The objection also set forth the contention that the evidence raised a certain issue, namely, "that a part of plaintiff's physical and mental suffering, if any, were attributable to some kidney trouble which had no connection with the accident." With this contention the court agreed "that an issue of factwas sharply presented as to whether Mrs. Ector was suffering from a kidney trouble prior to and at the time of the collision and as to whether or not a part of her suffering was attributable to the prior condition of her kidneys." (Italics ours.) The issue referred to as so raised by the evidence, was not submitted as a special issue. It was undoubtedly a defensive issue. Why then was it not waived? The conclusion of the court to the effect that because such issue was raised by the evidence there was error in not giving the charge or instruction to the jury directing the omission of the particular elements of damage poses an important question of practice which may be formally stated thus: In the submission of a case upon special issues, may a necessary or proper issue, not otherwise submitted, be, in effect, submitted by means of a purported definition or explanation of a legal term used in the statement of an issue which is submitted; the effect of such explanation or definition being to require a particular answer to the issue submitted accordingly as the jury may find upon the issue not submitted? It is not believed that the Supreme Court by its adoption of the opinion in the Ector case intended to sanction an affirmative answer to said question; yet, that conclusion would seem to be inescapable if the decision is to be deemed controlling in the instant case. In the case here the evidence raised an issue of fact as to whether all of Mrs. Lovejoy's injuries and consequent damages resulted from swallowing glass, or from disease, not affected by swallowing glass. The jury in response to an issue submitted found that the injuries did not result solely from the disease. That issue involves a complete defense. If the same evidence, or any other evidence, raised an issue that the injuries, although as a whole, not solely caused from disease, yet, as to some ascertainable part, were solely so caused, was not that just as much an issue for submission, and jury verdict thereon, as the issue involving a complete defense? What difference could there be in the controlling principles, and applicable procedure, between an issue constituting a complete defense to all of an asserted claim and one constituting a complete defense to a definite part of such asserted claim? To attempt to recognize any such difference would bring us into inevitable conflict with principles and decisions which it is unreasonable to suppose there has been any intention or purpose to repudiate.
In the Ector case it was said: "* * * the difference in the form of submission cannot be made to alter the rights of the defendant to have an affirmative exclusion of improper elements" (of damage). This was said in reference to two different forms of submitting the issue of damages — one said to be the usual way, and the other, the preferable way, (the one employed). Attention has already been directed to the self-evident proposition that by the preferable way the necessity of giving a charge or instruction *Page 267 "in connection with" or in addition to, the statement of the issue, would be obviated. The right of review would be fully preserved, to correct any error in the statement of the issue when the court having his attention directed thereto by proper objection had failed to make such correction. Apparently, the view was expressed that although the issue of (the amount of) damages was improperly stated, and had it been properly stated there would have been no necessity for giving in connection with the issue a charge or instruction, and although no objection was made to the improper statement of the issue, but only to the omission of the court to give the charge or instruction, yet nevertheless the court erred because the defendant had a right "to have an affirmative exclusion of improper elements." Did the court mean to say, in effect, that the right mentioned was not subject to waiver because of non-compliance with the law governing procedure? It seems that upon this point there is internal evidence of inadvertence and mistake. The issue submitted did notcontain the word "damages." It was expressly declared that the only authority for giving a charge or instruction was the authority to give explanations and definitions of legal terms. What legal term was being defined or explained by the charge in question? It would seem utterly unreasonable to impute the intention of the court to declare that the duty of the trial court in submitting a cause upon special issues to give such explanations and definitions of legal terms as "shall be necessary to enable the jury to properly pass upon and render a verdict on such issues" would authorize the giving of a charge or instruction when no legal term was used in the statement of an issue.
Undeniably much confusion and conflict exists in the decisions in this state which have some bearing upon the particular question under consideration. The writer is convinced that it originates in a failure to appreciate inherent differences between the two methods of submitting jury cases — upon a general charge and upon special issues. In submitting a case upon a general charge the submission of the issues is an inseparable part of the charge or instructions upon the law relating to the issues. The function of the charges or instructions is to inform the jury of the law to the sole end of enabling the jury to apply the law to its findings, (whatever they may be) upon the issues of fact. When the radically different method of submission upon special issues is adopted it is inherent in the very nature of such different method that there must be a separation of the issues from the charges or instructions. The issues are required to be so stated that the findings thereon will constitute only findings of fact. After the separation what becomes of the charges and instructions? Why should it be necessary in addition to the submission of the special issues to give such charges or instructions? To say that in any case submitted upon special issues it is necessary to give a charge or instruction upon the law governing any or all of the special issues is tantamount to a denial of the proposition that the jury under such plan of submission need not, and ought not, to be informed as to the law.
The opinion in the Ector case assumes that the explanations and definitions required by the statute in submissions upon special issues, perform the same, or similar, function as charges or instructions in cases submitted upon a general charge. Do they? The function of an explanation or definition of a legal term is to enable the jury to understand the meaning of the legal term. The function of a charge or instruction is to inform the jury of the law in order that the legaleffect of their findings of fact, may be truly declared by their general verdict. How, then, in view of these totally dissimilar functions, can it ever happen that an explanation or definition of a legal term, in order to be adequate, must consist of, or, at least must include, a charge or instruction upon the law relating to an issue? It is submitted that no such situation can ever arise; and any attempt to do so would be a gratuitous disregard of the basic reason for the method of submitting cases upon special issues in that it unnecessarily introduces the very thing which it is the purpose of that method to avoid.
Suppose in this case, as also in the Ector case, the issue had been stated as was said in the latter to be the usual, although less preferable way, in substance as follows: What do you find from a preponderance of the evidence is the amount of damages, if any, sustained by the plaintiff as the result of her injuries, if any? The legal term requiring explanation or definition, if any, would be the word "damages." Webster's International Dictionary gives the definition of "damages" as a legal term thus: "The estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right." There is nothing in this definition *Page 268 concerning the inclusion and exclusion of elements. No explanation or definition of the word "damages" would, in any event, be required unless upon the presumption that the jury did not understand the meaning of the word. Indulging that presumption we may ask, would the instruction which it was held the court erred in not giving have enabled the jury to understand the meaning of damages? The instruction merely informed the jury that from the amount of compensation, if any, to be found, there should be excluded certain elements. What was the authority of the court, even if the case were submitted upon a general charge, to instruct the inclusion or exclusion of the particular elements? Can there be any other answer than that the law authorizes recovery of those to be included and forbids recovery of those to be excluded? And, if so, can there be any argument against the proposition that an instruction to the jury to make such inclusions and exclusions would be a charge or instruction upon the law? The point, however, which is here sought to be emphasized is that if the jury did not know the meaning of the word "damages" — the only reason for giving a definition or explanation of such term in any event — they would gain no better knowledge from the charge. The charge performed no function of an explanation or definition of the term.