International & G. N. Ry. Co. v. Bartek

On Motion for Rehearing. The appellant bases its motion for rehearing in part on the views expressed by Mr. Chief Justice KEY in his dissenting opinion herein, for which reason we feel called upon to review that opinion. It was with much reluctance that we felt constrained to differ from the learned Chief Justice of this court in our original opinion herein. We have read his able dissenting opinion with much interest. To our minds, in that portion of said opinion which discusses the act of 1913 with reference to charges given and refused, he has allowed his zeal for what he conceives the law should be to obscure his vision as to what the law is.

This court, with the concurrence of Chief Justice KEY, has held that the statute requiring bills of exception to be taken to the charge of the court as a prerequisite to assigning error thereon is mandatory. Railway Co. v. Battle, 169 S.W. 1050. And such is the effect of all of the decisions on this subject. Insurance Co. v. Rhoderick, 164 S.W. 1068; Roberds v. Laney, 165 S.W. 114; Railway Co. v. Crutchfield, 165 S.W. 553, Saunders v. Thut, 165 S.W. 554; Johnson v. Hoover, 165 S.W. 900; Railway Co. v. Wadsak, 166 S.W. 43; Railway Co. v. Culver, 168 S.W. 515; Railway Co. v. Brown, 168 S.W. 869; Heath v. Huffhines, 168 S.W. 974; Railway Co. v. Barnes, 168 S.W. 992; Railway Co. v. Tomlinson, 169 S.W. 218; Railway Co. v. Eldridge, 169 S.W. 376; Railway Co. v. Chumbley, 169 S.W. 1108; Railway Co. v. Smith, 170 S.W. 324; Conn v. Oil Co., 171 S.W. 522; Railway Co. v. Becker, 171 S.W. 1025; Elser v. Putnam, 171 S.W. 1052; Railway Co. v. Dickey, 171 S.W. 1099; Williams v. Phelps, 171 S.W. 1102; Gunter v. Merchant, 172 S.W. 191; Railway Co. v. Packing House Co.,172 S.W. 196; Darden v. Traction Co., 172 S.W. 201; Railway Co. v. Wheat, 173 S.W. 976; Capps v. Johnson, 174 S.W. 295; Railway Co. v. Graham,174 S.W. 298; Franklin v. Railway Co., 174 S.W. 333; James v. Golson,174 S.W. 689; Railway Co. v. Dawson, 174 S.W. *Page 146 852; Sands v. Sedwick, 174 S.W. 897; Fuller v. L. S. Cor., 174 S.W. 932; Reed v. Ry. Co., 174 S.W. 957; Rogers v. Ezell, 174 S.W. 1012.

In none of the cases above cited was there a dissenting opinion. If anything can be settled by frequent decisions, it is settled in this state that an assignment of error as to a charge given cannot be considered unless a bill of exceptions has been reserved thereto. Such is the plain, unequivocal, and mandatory language of the statute, and so far as we know, there has been no decision to the contrary. The effect of the dissenting opinion is to overrule all of the decisions on this subject, and to hold that an assignment of error to a charge given may be considered, if it be made to appear in some other way than by a bill of exception that the appellant did not approve such charge. Some other way, in the language of the tradesmen, may have been "just as good," had the Legislature seen proper to allow it. But it has not, and in the language of the familiar hymn, "There is no other way." Railway Co. v. Wadsack, 166 S.W. 44. The other way suggested by the dissenting opinion is for the appellant to request a charge the opposite to that prepared by the court, and which he does object to being given. In Railway Co. v. Battle,169 S.W. 1050, we held that the statute "precludes the consideration of any assignment of error as to the action of the court in giving * * * charges, unless such action be excepted to and presented by bill of exceptions." In Eldridge v. Railway Co., 169 S.W. 377, this court said: "We do not think that the objections to the charge of the court under the statute can be made through the medium of special charges." Where there is no ambiguity, there is no room for construction. Engelking v. Von Wamel, 26 Tex. 472; Fire Ass'n v. Love, 108 S.W. 160. The Legislature is the lawmaking power, and, when it speaks within its constitutional limits it is for courts, as well as all others, to obey.

The dissenting opinion indulges the presumption that appellant did not approve the charge given inasmuch as it requested a contrary charge. There is no room for presumption. The statute closes the door of inquiry by declaring that a failure to except to the charge given "shall be regarded" as approving the same. R.S. art. 2061. To "approve" is to pronounce good, proper, legal. Standard Dictionary. If presumptions are to be indulged, it might be presumed that a failure to object to the charge confirmed the court in its error. Ratified error is equivalent to invited error. If the appellant has been placed in an "illogical if not absurd position," it has no one to blame therefore but itself. It is presumed to have known the law and to have intended the consequences of its acts, when those consequences are plainly declared by the statute.

"The logic is that, if objections which could have been made are not made to the charge of the trial court, unless fundamentally erroneous, the litigant accepts the charge." Railway Co. v. Crutchfield, 165 S.W. 563.

Having accepted the charge as correct, he thereby invites the court to give the same.

For the reasons stated, we think the Court of Civil Appeals for the Second District was correct in holding that failure to except to a charge is by the statute made equivalent to requesting the same, and, if erroneous, it is invited error, of which the appellant cannot be heard to complain. Barnes v. Railway Co., 168 S.W. 992; Elser v. Putnam,171 S.W. 1052; Railway Co. v. Wheat, 173 S.W. 976.

"Where a party expressly or impliedly asks that a designated ruling be made, he cannot avail himself of that ruling on appeal, although it may be material and may be exhibited by the record." Railway Co. v. Sein,11 Tex. Civ. App. 386, 33 S.W. 559.

The second point upon which the Chief Justice of this court dissents from the majority opinion herein relates to rule 62a. As we understand that rule, it does no more than to make clear what has always been the correct practice in this state, viz., not to reverse a case on account of immaterial errors of law committed on the trial. This rule has sometimes been departed from by attaching too much importance to errors of law committed by the trial court. We cannot agree to the proposition that "a legal trial is as important as a correct result." A correct result is the primary object sought by courts of justice in every case. A legal trial is important because it is the means by which a correct result is usually obtained. The books are full of the doctrine that a case will not be reversed on account of harmless error; but if legal error has been committed, though it be harmless, the trial, in a strict sense, has not been a legal one.

The "fly in the ointment" in rule 62a, as indicated by the dissenting opinion, is the insertion of the words "and probably did cause." See the rule as fully set out in the dissenting opinion. If the error was not "reasonably calculated" to cause the rendition of "an improper judgment," the court might well arrive at the conclusion that it did not "probably cause the rendition" of such judgment. The inquiry is made as to how the appellant can show that the error "probably did cause the rendition of an improper judgment." We answer by showing from the facts and circumstances as exhibited by the record that it was reasonably calculated so to do. This rule does not require that cases be affirmed when material error has been committed on the trial. An error that is not "reasonably calculated to cause * * * the rendition of an improper judgment" can in no sense be said to be material. That the error was not of this kind must be determined by the appellate court in every case where it holds such error to be harmless, and their name is legion. *Page 147

Rule 62a, as we understand it, is not in conflict with Land Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 22 L.R.A. 105, in that it does not "hedge either the Court of Civil Appeals or the Supreme Court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts." But the appellant having had "free access," and the Court of Civil Appeals or the Supreme Court having arrived at the conclusion that the error committed by the trial court was not prejudicial to his rights, the rule says that the case ought not to be reversed on account of such error.

We have not held, and do not hold, that where an erroneous charge has been given on the burden of proof the judgment should be affirmed, simply because the evidence favorable to the appellee is sufficient to sustain the verdict. What we hold is that, looking to all of the testimony for both appellant and appellee, if the preponderance of the evidence is so greatly in favor of the appellee that it is not probable that the verdict would have been different had a correct charge been given, the judgment should be affirmed; no other material error appearing of record. We agree that, "the charge being erroneous, it is presumed to have been injurious to the interest of the defendant." But this presumption is not a conclusive one, and is rebutted when an examination of the whole record reasonably shows that such was not the case. There was no occasion for the Supreme Court to refer to rule 62a in Scott v. Townsend, 166 S.W. 1138. In that case Mr. Justice Phillips, speaking for the court, said:

"That this incompetent testimony was likewise prejudicial to the plaintiff in error is, in our opinion, not open to question."

In such case rule 62a is not applicable; but we apprehend that it will not be contended that the admission of incompetent testimony over objection must necessarily lead to the reversal of a case, regardless of the probable effect of such testimony on the court or jury.

The other point discussed in the dissenting opinion relates to the private views of the writer, and not to anything involved in the majority decision.

We were in error in saying that the seventh assignment of error related to the charge of the court. This assignment was based upon the refusal of the court to compel the appellee to submit to having X-ray photographs of his back taken to be exhibited to the jury. We do not think that the trial court abused its discretion in this matter. The facts of this case do not bring it within the rule announced in Railway Co. v. Anglin,99 Tex. 349, 89 S.W. 966, 2 L.R.A. (N. S.) 1386; Railway Co. v. Langston,92 Tex. 709, 51 S.W. 331; and Railway Co. v. Smith, 38 Tex. Civ. App. 507,86 S.W. 943. We understand the doctrine announced in those cases to be that, while a party has the right, in the first instance, to refuse to submit his person to examination, yet by doing so, and being so examined by his own physician in the presence of the jury, he waives his privilege in this regard, and the opposite party is entitled to have a like examination made by his physician. In the instant case the appellee exhibited his back to the jury, and his physician pointed out thereon the evidence of the injury as he claimed it to be. A like examination was made, without objection, by the physician of the defendant, who denied that profert of appellee's back furnished conclusive proof that one of his vertebrae had been fractured, as was claimed by appellee's physician. The evidence further showed that appellant had been afforded an opportunity to have X-ray pictures of appellee's back taken by Dr. Sanerman of Houston, an alleged expert, who presumably was impartial in the matter, inasmuch as he was not personally known to the appellee or either of his counsel. The appellee's counsel at this time objected to having such pictures taken by a party in Waco, upon the ground that they doubted his competency. This was some time before the trial. The Waco party referred to is the same party whom appellant requested should be permitted to take such pictures during the trial. Appellee's counsel agreed that if the X-ray picture was taken by Dr. Sanerman he would make no objection to its introduction in evidence. The introduction of an X-ray picture taken by an incompetent person might have proven very prejudicial to appellee. The Waco party may have been competent, but appellee's counsel did not think so, and the court was justifiable in not compelling appellee to have an X-ray picture taken by a party who was objectionable to him, when he had offered to have such picture taken by a party whose competency and disinterestedness was not called in question.

Assignments Nos. 8 and 9 were overruled for the same reason that we overruled the tenth assignment.

Believing that we committed no error in affirming the judgment herein, the appellant's motion for a rehearing is overruled.

Overruled.