This is a workmen's compensation case, in which the employee claimed that an injury to his wrist affected other parts of his body. There was an issue as to whether the employee was entitled to recover for a general injury or only for the loss of a specific member of his body — his hand.
The court submitted the following issues, among others, to the jury:
"SPECIAL ISSUE NO. 5: Do you find from a preponderance of the evidence that the injuries to Denbow's left wrist affects his *Page 457 nerves and nervous system causing pain and suffering if the left hand is used in performing the usual tasks of a workman?" To which the jury answered: "We do."
"SPECIAL ISSUE NO. 12: Do you find from a preponderance of the evidence that the effects, if any, of the injury to H.E. Denbow's left wrist causing disability, if any, are not limited to his left hand?" To which the jury answered: "We do not."
After the verdict had been returned the court, over the protest of the insurance company, orally stated to the jury as follows: "Gentleman, I am going to give you the Charge and Answer Sheet and ask you to see if you can reconcile Issues No. 5 and No. 12." Thereupon the jury returned to the jury room and changed their answer to Issue No. 12 from "We do not" to "We do." The court then received the verdict and entered judgment for the employee for a general injury. The Court of Civil Appeals reversed the judgment of the trial court because the instruction to the jury to eliminate the supposed conflict in their answers was oral, and not in writing as required by Rule 295 of the Texas Rules of Civil Procedure. 183 S.W.2d 680.
Rule 295 reads as follows:
"Rule 295. Defective verdict. — If the verdict is informal or defective, the court may direct it to be reformed at the bar. If it is not responsive to the issue submitted, or contains conflicting findings, the court shall call the jury's attention thereto in writing and send them back for further deliberation."
The Court of Civil Appeals was of the opinion that since the court's instruction to the jury to reconcile the supposed conflict was oral instead of in writing, harm must be presumed, and reversal must follow. We are not in accord with this holding. Rule 295 must be read in the light of the provisions of Rule 434, which reads in part as follows:
"* * * Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; * * *." *Page 458
1 These two rules constitute a part of the same set of rules and necessarily they must be read together. When these two rules are read and construed together it will be seen that while Rule 295 requires the trial court to point out the supposed conflicts in the verdict in writing, yet under Rule 434 the case will not be reversed on the ground that the instruction was not in writing, unless the failure to give the instruction in writing was reasonably calculated to and probably did cause the rendition of an improper judgment or probably prevented the appellant from making a proper presentation of the case to the appellate court. This is the only reasonable construction that can be placed on these two rules when read together. In other words, if it be held that Rule 434 is not applicable when a rule has been disobeyed or the law otherwise violated, then there would be no need for Rule 434, for this latter rule becomes applicable only when "the trial court has committed an error of law."
2 In this case the oral instruction given by the trial court was short. It was not confusing, but was easily understood. It was not an instruction on the law in the case. It was made in the presence of counsel for both parties, and the exact words of the judge were preserved. No contention is made that appellant was prevented from making a proper presentation of the alleged error to the appellate court. The instruction was no more harmful when given orally than it would have been if given in writing. For these reasons reversal should not have followed merely because the instruction was oral.
Of course, if the attorneys had been absent, or if the wording of the instruction by the judge to the jury had been lost, or if its form had been confusing to the jury, there could have been harm such as would require a reversal of the judgment. No such situation is here presented. It is not every oral instruction to the jury that presents reversible error. Dallas Railway Terminal Co. v. Whitcomb, 139 Tex. 467, 163 S.W.2d 616.
The Court of Civil Appeals relied on the case of Consolidated Underwriters v. Ruff, 164 S.W.2d 550, in which this Court "Refused for Want of Merit" an application for writ of error. It appears, however, upon examination of the record in that case that the application for writ of error was filed by Consolidated Underwriters, who had won a reversal of the case in the Court of Civil Appeals. By applying for the writ it sought to have judgment rendered in its behalf. Ruff, who had lost in the Court of Civil Appeals on the point here involved, did not file an application for writ of error. Consequently the ruling *Page 459 of the Court of Civil Appeals on the point here involved was not presented to the Supreme Court in that case.
3 We are of the opinion, however, that the judgment of the trial court was properly reversed on account of the giving of the instruction, not because the instruction was oral, but because there was no conflict in the verdict to be reconciled. The jury's answer to issue No. 5 amounted only to a finding that the injury affected the use of the left hand. The jury found that the injury so affected the nerves that the employee suffered pain if he used his left hand. Presumably, under that finding, if he did not use his left hand he did not suffer any pain. Hence he had only lost the use, or partial use, of his left hand. This amounted to nothing more than the finding of a specific injury. The jury by its original answers of "We do not" to Issue No. 12 failed to find that the injury to the left wrist affected other parts of the body so as to cause disability. Hence there was no conflict. The court erroneously instructed the jury that a conflict existed when there was no conflict, and thereby caused the jury to change its answer to one less favorable to the insurance company. This was an error which caused the rendition of an improper judgment, and hence was a reversible error.
4 The confusion as to what the jury had found in answer to the two issues above referred to was doubtless brought about by the fact that Issue No. 12, when considered in connection with the jury's answer thereto, was in the double negative. We again call attention to the importance of submitting the issues in simple language, and, if possible, in the affirmative, so that they may be readily understood by the jury. An issue is of no value, and may be positively harmful, if it is not properly understood by the jury. Issues when submitted in the negative are sometimes so confusing that experts learned in the law differ as to the meaning of the jury's answer thereto. It is obvious that such issues are confusing to laymen. Rule 277 provides in part "Where practicable, all issues should be submitted in the affirmative, and in plain and simple language. It is proper to so frame the issue as to place the burden of proof thereon, but where, in the opinion of the court, this cannot be done without complicating the form of the issue, the burden of proof on such issue may be placed by a separate instruction thereon." (Emphasis ours.)
Issue No. 12 could have been submitted in the affirmative in substantially the same language by framing the issue as follows: "Did the injury, if any, to Denbow's left wrist affect *Page 460 parts of his body other than his hand and wrist, thereby causing disability?" If an instruction on the burden of proof had been desired, this issue could have been followed by an instruction as follows: "If you find from a preponderance of the evidence that the injury to the left wrist affected parts of the body other than the hand and wrist, thereby producing disability, you will answer this issue, `Yes.' Otherwise you will answer it, `No.'"
For the reasons hereinabove indicated the judgment of the Court of Civil Appeals, reversing the judgment of the trial court and remanding the cause for a new trial, is affirmed.
Opinion delivered March 14, 1945.
Rehearing overruled April 4, 1945.