Traders & General Ins. Co. v. Davis

McGILL, Justice

(concurring).

I concur in the disposition of the case, but not with all of Associate Justice Sutton’s opinion. Therefore I deem it advisable to state my views on the points on which I do not agree with the opinion of Associate Justice Sutton.

The jury’s answer of “permanent” to Special Issue No. 4 obviously referred to “any disability” specified in Special Issue No. 3, a disability which might be either total or partial. Special Issue No. 5 likewise referred to “any disability” specified in Special Issue No. 3 and the affirmative answer thereto established that the disability found to be a *968permanent disability by the answer to Special Issue No. 4 was also a total disability. The submission of Special Issue No. 7 was unnecessary if the answer to Special Issue No. 4 should be “permanent,” but since answer to Special Issue No. 7 was not made conditional on an answer of “temporary” to Special Issue No. 4 an answer thereto was essential to warrant a judgment of total permanent disability. Any answer thereto differing in substance from the answer of “permanent” returned to Special Issue No. 4 would have been in conflict therewith. It is elementary that the submission must be considered before answers are returned, not afterward. Defendant was entitled to have the jury consider their answer to Special Issue No. 7 in connection with their answer to Special Issue No. 4 and to avoid a conflict therewith if possible before the verdict was accepted by the court. This they might have ■done by changing their answer to Special Issue No. 4. In case of any irreconcilable ■conflict defendant would have been entitled to a new trial.

The, only serious question in this case is in regard to the instructions given by the court as to Special Issue No. 7. In regard to Special Issue No. 7 the court charged the jury:

“If you find from a preponderance of the evidence that such disability, if any, is limited to a particular time, then state that time, but if you find from a preponderance of the evidence that such disability, if any, is not limited to a particular time, then answer 'Permanent’ ”.

The objection in substance was:

“The court is commenting on the evidence in using the language ‘limited to a particular time’. The court is unduly stressing the matter of a particular time, and in view of the fact that the evidence regarding duration did not show any particular time or date it amounts virtually to telling the jury to return the answer ‘Permanent’ ”.

Rule of Civil Procedure No. 274 requires among other things :

“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.”

On appeal a party is confined to the objections made in the trial court to the court’s charge. Regardless of whether the instruction as to Special Issue No. 7 be correct or otherwise, it is not a comment on the evidence. For a charge to constitute a comment on the evidence, it must bear upon the credibility of evidence or testimony, or the effect of evidence. See Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 492; Robinson v. Ross, Mo.App., 47 S.W.2d 122, 125; State v. Brown, 19 Wash.2d 195, 142 P.2d 257, 260.

An incorrect definition of terms used in the charge is not necessarily a comment on the evidence.

Now a temporary injury of necessity lasts for a particular time. The determination of that time under the evidence may be difficult, but if the injury lasts for an unlimited time, that is, is not limited, it is of necessity permanent.

The answer “indefinite’! was not responsive to Special Issue Nro. 7. Special Issue No. 7 was as follows:

“From a preponderance of the evidence what do you find was the duration of such total disability, if any? Answer by giving the length of time.”

Most certainly the answer “indefinite” was not an answer giving the length of time. The contention of appellant that the jury meant by their answer “indefinite” that they were unable to fix the length of time is not convincing under appellant’s contention that no judgment could be rendered under the answer “indefinite.” Under appellant’s contention no judgment could be rendered with this answer to the issue. If this be correct, then the trial court certainly did not commit error in requiring the jury to' further consider Special Issue No. 7. There was evidence under which the jury could have found that the injury was temporary, under which they could have fixed the date. On the other hand, there was evidence that the injury was permanent. Construed as appellant contends, the answer was not a finding on Special Issue No. 7 but an assertion of inability to answer same.

I concur in the affirmation of the case.

*969Chief Justice PRICE authorizes me to state that he concurs in the views herein expressed.