On Motion for Rehearing.
NORVELL, Justice.Upon a re-examination of the record of this case, in the light of appellant’s motion for rehearing, the majority of this court is of the opinion that appellant’s eighth point should be sustained, the judgment of the trial court reversed and the cause remanded.
By the point above mentioned it is asserted that the trial court committed reversible error by giving a general charge to the jury.
In order to fairly present the contention made, it is necessary to consider particularly special issues Nos. 1, 4 and 6, which read as follows:
(1) “Do you find from a preponderance of the evidence that at the time and place in question Joe Roy Hunter stated to the plaintiff, J. Earl Montgomery, that the piston or plunger in question was solid? * * ⅜»
(4) “Do you find from a preponderance of the evidence that the plaintiff, J. Earl Montgomery, in welding the piston in the condition in which it was handed to him by Joe Roy Hunter, relied upon the statement, if any, made to him by Joe Roy Hunter that the piston was solid?”
(6) “Do you find from a preponderance of the evidence that the act of the plaintiff, J. Earl Montgomery, in relying upon the statement, if any, made to him by Joe Roy Hunter; if he did so rely upon such *1002statement, was negligence, as that term is defined herein?”
The trial court defined negligence as meaning “the failure to exercise ordinary-care, and 'ordinary care/ is that degree of cafe which a person of ordinary prudence would exercise under the same or similar circumstances.”
Over the objection of appellant, that the. same constituted a general charge, the court below gave the following instruction: “You are further instructed that a person may rely upon assurances of safety made to him by another where under the same or similar circumstances an ordinarily prudent person would do so.”
Each of the present members of our Supreme Court has written at least one opinion holding that a charge similar to the one above set out is a general charge. J. M. Radford Grocery Company v. Andrews, Tex.Com.App., 15 S.W.2d 218, by Judge Critz; Texas & Pacific Ry. Co. v. Perkins, Tex.Com.App., 48 S.W.2d 249, by Judge Sharp; Lamb v. Collins, Tex.Civ.App., 93 S.W.2d 490, 491, by Judge Alexander.
The above cases are also authority for the proposition that when valid objection is made the giving of a general charge in a special issue case is reversible error. In Lamb v. Collins, supra, it was expressly held that an objection to a particular instruction “on the ground that it was a general charge” was a sufficient .predicate for the assertion of error.
In our opinion, the Texas 'Rules of Civil Procedure promulgated by the Supreme Court in accordance with House Bill 108, Ch. 25, p. 201, General Laws of the 46th Legislature, Article 1731a, Vernon’s Ann.Civ.Stats., have no application to the matter here under discussion.
Rule 814 provides that said rules “shall take effect on September 1, 1941. They shall govern all proceedings in actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure shall apply. All things properly done under any previously existing rule or statutes prior to the taking effect of these rules shall be treated as valid. * * * ”
‘ The petition in this cause was filed on August 19, 1939. The proceedings concerning which complaint is made, that is the court’s instruction to the jury, took place on the 25th day of November, 1940, long before the effective date of the rules. As a matter of fact, these proceedings took place prior to the convening of the 47th Legislature, on January 14, 1941. House Bill 108, above mentioned, expressly provides that rules promulgated in accordance with the act shall become effective September 1, 1941, “unless disapproved by the Legislature” at the next Regular Session, i. e., the 47th Session.
Under these circumstances, the parties were certainly not required to anticipate the provisions of new Rules of Civil Procedure which were then in the embryonic stage. If a contrary view be taken, it is only necessary to point out that Rule 814 in its present form, was included in the original promulgation of rules made by the Supreme Court on October 29, 1940, although some 89 changes, additions or modifications have been made since that date. Under the plain wording of this rule, as above pointed out, any party to a cause filed prior to September 1, 1941, in which a jury was instructed prior to said date, could certainly rely upon the stated inapplicability of the proposed Rules of Civil Procedure, and try his case in accordance with the statutes and rules of decision in force at the time the proceedings took place. That confusion would result from a'contrary holding is believed obvious. It can not be said that the adoption of Rules of Civil Procedure by the Supreme Court, to become effective as provided for therein, ipso facto operated to overrule the authorities above cited, as well as many others of similar import, as of October 29, 1940, the date, of the original promulgation of said rules.
Further, we are not prepared to say that the giving of the charge here involved would not be reversible error under the Rules of Civil Procedure, provided proper objection, in conformity with said rules, were made. Certainly, this unnecessary and redundant instruction in accordance with appellee’s theory of the case, can not be approved as a proper charge. Believing, however, that the Rules of Civil Procedure have no application to this case, we pretermit further discussion, except to point out that the exact reading of Rule 277 is in part as follows: “In submitting special issues the court shall submit such explanatory instructions and such definitions of legal terms as shall be necessary to- enable the *1003jury to properly pass upon and render a verdict on such issues, and in such instances the charge shall not be subject to the objection that it is a general charge.” (Italics ours.)
The judgment appealed from is reversed and the cause remanded.