(dissenting).
I cannot concur in the opinion of the majority of this court calling for the reversing of the judgment and the remanding of this cause, because the trial court in connection with a special issue charge also gave a general charge.
As has been hereinbefore stated, Rule 277 of Civil Procedure states, in effect, that it shall not constitute reversible error to give a general charge in a special issue case. The question is whether this rule should be here applied inasmuch as the trial of this cause in the District Court took place prior to September 1, 1941, the date upon which the new rules of practice and procedure in civil cases became effective. It is clear to me that the provisions of New Rule No. 277 should h'ere apply.
Prior to September 1, 1941, the statutes and court rules were silent as to whether or not the giving of a general charge in a special issue case was- reversible error. Since that date the rules affirmatively provide that the giving of such general charge is not reversible error.
New Rule 434 provides, in effect, that this court shall not reverse any judgment or remand a cause for a new trial on the ground that the trial court has committed an error of law in the course of the trial, unless we are of the opinion that the error complained of amounts to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. How can it be said that the giving of a general charge prior to September 1, 1941, was reasonably calculated to cause and probably did cause the rendition of an improper judgment, but that the giving of a general charge in a special issue case after September 1, 1941, is not reasonably calculated to cause and probably did not cause the rendition of an improper judgment?
New Rule 814, which relates to the time the new rules of practice and procedure in civil cases shall be given effect, provides, among other things, that “All things properly done under any previously existing rule or statutes prior to the taking effect of these rules shall be treated as valid,” but such rule is carefully worded so as not to-contain a provision which would be the converse of this, to-wit: “All things improperly done under any previously existing rule or statutes prior to the taking effect of these rules shall be treated as invalid.”
It is quite obvious why the latter provision was left out of Rule 814. Evidently the authors of the new rules did not wish to compel any appellate court to place itself in the illogical position of saying that a certain act committed prior to September 1, 1941, would render a trial unfair, but the same act committed subsequent to September 1, 1941, would not render such a trial unfair. Likewise, such authors did not desire to compel any appellate court to reverse a judgment for the giving of a charge when if upon another trial that same charge were to be given it would not constitute reversible error.
It is my opinion that the judgment should not be reversed for the reasons stated in the majority opinion, but should be affirmed, as stated in the original opinion.