In so much of the foregoing majority opinion by our Chief Justice as deals with issues of which this court has entertained jurisdiction I concur; but I do not concur entirely in the application made, in that opinion, of amended subdivision 6 of R.S. Art. 1521, Acts of 1917.
It is my opinion that whenever it is shown here, to the satisfaction of this court, that a Court of Civil Appeals has held, erroneously, that a given issue is or is not supported by some evidence, thereby determining whether such issue is or is not properly referable to the jury, such error should be treated by this court as being, in and of itself, of such importance to the jurisprudence of the State as to require correction.
I believe that the requirements of this jurisdictional statute are met in every such instance, and that intrinsically, such error is of the stated importance, even though such error may have been *Page 97 committed in treating an issue which is not of frequently recurring nature or general interest, and even though such erroneous ruling may not have been intended as an assertion of a general principle or a general rule of practice.
I think that a holding by the Court of Civil Appeals approving or directing the submission, by the district court, to the jury, of a given issue when, in the opinion of the Supreme Court, there is no evidence to support it, or approving or directing refusal of a district court to submit to the jury a given issue when, in the opinion of the Supreme Court, there is evidence to support it, constitutes, inevitably, in every instance, "a serious departure from the established law," and introduces into our jurisprudence "a doctrine violative of fundamental principles." Instances of the former character involve refusal of the trial court to perform an "essential function" — to discharge a legal duty which ought not to be shifted to the jury; and instances of the latter character involve a practical denial of the right of trial by jury, in plain contravention of our State Constitution.
Such errors, very naturally, will occur, occasionally, and that is bad enough, even though all such errors be subject to correction by our Supreme Court; but for any such error to be recognized by this court and yet not be subject to correction by it, for lack of jurisdiction in this court, is, I think, a very serious reproach to our jurisprudence. In view of the phraseology of said amended subdivision 6, I cannot concur in a construction of it which entails that deplorable result.
I think that the practice of this court, under said statute, should be to examine the record whenever such a question is duly presented here, and, if such error be found, to correct it in every instance, upon the theory that such error is of vital importance to our jurisprudence.
As to the construction properly attributable to said statute I refer to "In re subdivision 6 of Supreme Court Jurisdiction Act of 1917," 201 S.W. 390 et seq. In so doing it is not my purpose to reopen or deal with any question concerning the constitutionality of said statute further than such question may be involved in the construction placed upon it by the majority opinion of this court in this present case.
Affirmed and case remanded with directions.