Northern Texas Traction Co. v. Wright

On Motion for Rehearing.

Appellee calls our attention to the fact that appellant took no exception to the burden of proof either as made in issue No. 11 as submitted or as stated by the court in the instruction on the burden of proof quoted in our main opinion. The appellant did request the following special issue: “Do you find and believe from the evidence that the injuries in question, if any, were not caused as a result of an unavoidable accident as that term has been heretofore defined?”

This request was refused. The appellant contends that this request was sufficient to call the court’s attention to the error as we have above shown it. We do not agree with appellant. Judges, being human, make mistakes. Those mistakes should be called to their attention directly. It is to the interest of society of the administration of justice, of the costs of litigation, that appeals should not be necessary except to correct those errors which the trial judge refuses to correct. Litigation is one of the necessary evils of the conduct of human affairs. Necessary, but a burden none the less. The policy of the law always has been to reduce same to a minimum. It is to this end that it is required that the error in an issue submitted, if saved for appeal, must be by objection which points the vice of the charge in the particular complained of. Article 2185, R. S., requires “which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.”

We observe that the issue requested, while it does relieve the issue submitted of the wrong burden of proof, still is not' couched in language which would show the court that the appellant was dissatisfied with the burden of proof placed by the court’s charge. It conceals the complaint made on appeal rather than to call attention to same “in the particular complained of.” Gulf, T. & W. Ry. v. Dickey, 108 Tex. 126, 134, 187 S. W. 184, 187; Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920.

To allow such proceedings to be the basis of an assignment of error that the court incorrectly charged on the burden of proof would be to place a premium on deception to invite unnecessary appeals and turn trials into contests of sophistry. Nothing ought to *626change the fact that lawyers are officer^ of the court sworn to assist the judge in trying the case correctly. Ft. W. & D. O. Ry. v. Thompson (Tex. Civ. App.) 222 S. W. 289.

The rule is not abrogated by Acts of the 42d Legislature, 1931, c. 45, § 1, amending article 1757, R. S. (Vernon’s Ann. Civ. St. art. 1757). Bustamente v. Haynes (Tex. Civ. App.) 55 S.W.(2d) 137.

The judgment of reversal is set aside, and the judgment of the trial court is affirmed.