Supreme Court of Texas.
CITY OF AUSTIN, Petitioner,
Leroy POWELL, Respondent.
Feb. 27, 1957.
Attorneys & Firms
*610 **273 Doren Eskew, City Atty., Austin, Robert J. Potts, Jr., and Thomas P. deSteiguer, Asst. City Attys., for petitioner.
*611 Victor B. Rogers and Jerry LeMond, Austin, for respondent.
The controlling question here presented is whether a trial court’s error in failing to fix the burden of proof on a special issue may be preserved by an objection unaccompanied by a request for a special instruction. This calls for a construction of City of Austin v. Leroy Powell, Tex.Civ.App., 294 S.W.2d 216.
This is a workmen’s compensation case with the City of Austin occupying the position of insurance carrier under the provisions of Acts 1953, 53rd Leg., p. 805, ch. 327, Article 8309e, Vernon’s Ann.Tex.Civ.Stats.
Special Issue No. 4 submitted by the trial judge was as follows:
’Is the total disability, if any, of the plaintiff, Leroy Powell, temporary or permanent?
**274 ‘Answer this Special Issue by stating ‘It is temporary’ or ‘It is permanent.“
The City made the following objection:
‘The defendant City of Austin * * * further objects to Special Issue Number 4 because of the failure of said issue to place the burden of proof upon plaintiff, who is charged with the burden of providing (sic) the disability of the defendant Leroy Powell.’
As the objection specifically calls attention to the fact that the issue does not place the burden of proof upon the plaintiff, it is obviously effective for such purpose if an objection alone will suffice. The Court of Civil Appeals held, however, that the fixing of the burden of proof on a special issue was in effect the giving of an ‘explanatory instruction’ and hence the following proviso of Rule 279 applied:
*612 ‘Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.’
While there is dicta in Texas Employers’ Insurance Ass’n v. McMullin, Tex.Civ.App., 279 S.W.2d 699, wr. ref. n. r. e., that lends some basis for a distinction between a case in which the issue is framed so as to place the burden of proof and one in which a separate instruction is used for that purpose, we think the Court of Civil Appeals in the present case correctly concluded that in principle there is no distinction between the forms of issues mentioned. The fact that a definition or an instruction appears in the body of an issue does not change its nature or essential quality and such practice is not uncommon in the Texas procedure.1
However, it does not necessarily follow that a charge fixing the burden of proof is an ‘explanatory instruction’ as that term is used in Rule 277, McDonald points out that Article 2189, Revised Statutes 1925, from which the rule is largely taken, used the expression, ‘explanations and definitions of legal terms,’ and that these terms were construed as being practically synonymous. Under the Rule, however, an explanatory *613 instruction is a somewhat broader term and ‘may be a statement of a rule of law which the jury must understand in order intelligently to **275 deal with the special issues submitted, but which formerly might have been condemned as a general charge.’ 3 McDonald, Texas Civil Practice, 1082, s 12.14.
Prior to the adoption of the Rules it had been held that an objection alone was sufficient to preserve the error of failing to fix the burden of proof. Rule 279. It follows that the City’s objection was sufficient to save the point of error and a reversal of the judgment must be ordered.
We have examined petitioner’s points asserting that there is no evidence supporting the jury’s findings of total and permanent *614 incapacity. While, as urged by petitioner, the injury suffered by respondent is largely confined to the leg and there is evidence of a favorable prognosis of recovery under proper medical and surgical treatment, yet there is evidence which supports the disputed findings. Hence the issue is one of fact and not of law and the case calls for a remand rather than a rendition of judgment.
For the error pointed out, the judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for another trial.
Issues of negligence and diligence provide common examples and others might be given.
‘Do you find from a preponderance of the evidence that the plaintiff, as he left the office of the defendant on the occasion under inquiry, failed to keep a proper lookout for motor vehicles approaching the place where the injury occurred?
‘In connection with the foregoing issue you are instructed that a proper lookout is such a lookout for approaching vehicles as an ordinarily prudent person would have kept under the same or similar circumstances.
‘Do you find from a preponderance of the evidence that the plaintiff, as he left the office of the defendant on the occasion under inquiry, failed to keep such lookout for vehicles approaching the place where the injury occurred as an ordinarily prudent person would have kept under the same or similar circumstances?’
‘Do you find from a preponderance of the evidence that the defendant failed to develop said premises with due diligence * * *?
‘Do you find from a preponderance of the evidence that defendant failed to develop said premises with such diligence as would be used by a reasonably prudent operator under the same or similar circumstances * * *?’
See, Hon. J. T. Suggs’ Manual of Special Issues, 1 Stayton’s Texas Forms, 343, 352.