On Motion for Rehearing.
[3] Appellee, in her motion for rehearing, urgently insists that, even if the paragraph of the court’s charge complained of bears the construction placed upon it by this court, yet it is not affirmative error, because it is not a misdirection of the jury, but is a mere omission by the court to charge in that connection upon the defensive theory of appellant. It is contended that the charge as given was not erroneous, “but a failure to give an instruction which the appellant had a right to demand,” and that a charge, which appellant contends would have been correct if given, would not have been in conflict with nor created a confusion in the meaning of the charge which was given. If this contention of appellee is correct, then the charge given by the court was not such affirmative error as to justify a reversal of this case, in the absence of a request for a special instruction upon that theory of the case which appellant contends should have been submitted to the jury. A clear line of decisions, from the ease of Chamblee v. Tarbox, 27 Tex. 140, 84 Am. Dec. 614, down to the very lucid and learned discussion of the doctrine by Mr. Justice Williams in Parks v. Traction Co., 100 Tex. 225, 94 S. W. 331, 98 S. W. 1100, has established the rule that a charge, which correctly states the law as applicable to one theory of a case requires a finding of the facts necessary to support such a theory, in the absence of a request for additional instructions, is not affirmative error merely for failure to submit the whole case to the jury, unless the giving of a proper requested charge covering the whole case, or.the phase omitted, would present a conflict with the charge given or render the whole unintelligible or misleading. As said by the court in the Parks Case: “The distinction, upon the mere statement of it, may appear to be a close one;' but it is really a substantial and important one, for upon it depends the further question as to the duty of parties to aid the trial courts in' the submission of their causes of action or grounds of defense by supplying mere omissions and deficiencies in instructions given.” Chamblee v. Tarbox, supra; S. & E. T. Ry. Co. v. Wood, 69 Tex. 679, 7 S. W. 372; T. & P. Ry. v. Brown, 78 Tex. 397, 14 S. W. 1034; G. C. & S. F. Ry. Co. v. Hill, 95 Tex. *1032629, 69 S. W. 136; S. A. & A. P. Ry. Co. v. Lester, 99 Tex. 214, 89 S. W. 752; Parks v. S. A. Traction Co., 100 Tex. 225, 94 S. W. 331, 98 S. W. 1100; Sauer v. Veltman, 149 S. W. 706.
[4] After a careful reconsideration of tlie charge complained of in this case, we have concluded that we were in error in holding that it presented an affirmative error, and believe it comes within the rule above stated. There is no doubt that a special charge could have been so worded as to fully cover the phase of the case that was omitted in that paragraph of the general charge, and it was the duty of appellant to prepare such a charge and request its submission. Not having done so, it must be presumed to have been satisfied with the general charge.
It becomes necessary for us to dispose of appellant’s other assignments of error.
[5] The second, third, and fourth assignments of error attack the verdict of the jury as contrary to the great preponderance of the evidence. Upon all the issues of fact raised by these assignments the evidence was in conflict, and therefore it is not the province of this court to disturb the findings of the jury, and they are overruled.
The fifth assignment of error attacks the verdict as excessive. We find no evidence in the record of passion or prejudice on the part of the jury, and cannot say the amount of damages allowed to the plaintiff was excessive. This also disposes of the sixth and seventh assignments of error.
Our original opinion is amended by striking out that part of it relating to the enforcement of the rules, and the motion for rehearing is granted, and the judgment affirmed.