Marosis v. Nira

SMITH, Chief Justice. This is an action for damages for personal injuries, involving a very deplorable accident resulting in most distressing injuries to Mrs. Rufina Nira, wife of Car-pió Nira, who recovered judgment against Nick Marosis upon allegations and jury findings that his automobile, driven by Nick Rósate and in which Marosis was also riding, was so negligently operated that it ran over and injured Mrs. Nira, while she was walking by the side of the paved highway between the towns of Natalia and Devine, in Medina County. Mar-osis has appealed. As stated in appellant’s brief, “The case was tried to a jury and in response to special issues submitted the jury found that appellant’s driver was negligent in failing to keep his automobile under control; in failing to stop his automobile immediately prior to the accident; that each of said acts of negligence were proximate causes of the accident; that the injuries were not the result of an unavoidable accident; that plaintiff Mrs. Nira was not guilty of contributory negligence, and fixed the damages at $600 for physician services, hospital bills, etc., and the personal injuries at $6,500.” The case was submitted upon twenty-three special issues of fact. The trial judge placed the burden of proof in each of the first twenty-one issues, by the now familiar and uniform device of requiring the jury to find upon each “from a preponderance of the evidence.” The twenty-second issue inquired “what amount do you find from a preponderance of the evidence” to be the reasonable value of doctors’ and hospital bills incurred by the plaintiff, thereby, as in the preceding twenty-one issues, properly placing the burden of proof upon plaintiff. Thereujpon the trial judge submitted the twenty-third, and last, issue, of the amount of damages plain *405 tiff sustained by reason of his injuries, in the form: “What amount of damages, if any, would, if paid now, reasonably compensate plaintiffs for such injuries, if any, as you may find from the evidence to have been sustained by Mrs. Rufina Nira, as a proximate result of said accident? Answer by stating the amount, if any. “In estimating such damages, if any, you may take into consideration physical and mental pain, if any, together with loss of time, if any, up to the present so resulting. And if you find from the evidence that plaintiff’s injuries, if any, will impair her capacity to work and perform services in the future, you may include in your estimate such amount as you may believe from the evidence would, if paid now, reasonably compensate her for such impaired capacity 'to work and perform services in the future, directly resulting from such injuries, if any.” It will be observed that in submitting this issue the court omitted the phrase “from a preponderance of the evidence” used in each of the preceding issues, and did not otherwise place the burden upon plaintiff to establish the amount of his damages by a preponderance of the evidence. Appellant objected to the form of the issue upon that ground, and prosecutes the point through his first and second propositions. It is elemental that in cases of this nature the burden rests upon the plaintiff to establish the amount of his damages by a preponderance of the evidence, and in such cases it is the duty of the trial judge to so instruct the jury to whom that issue is submitted. The defendant’s right to have the jury so instructed is a material one, and a valuable one, and the omission of the instruction, in the face of appropriate and timely complaint of the defect, constitutes reversible error. Texas Employers’ Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.2d 658. Defendant’s first and second propositions must be sustained, and the judgment reversed. In its third and fourth propositions appellant complains of the form of the submission of the issue of unavoidable accident, as follows: “Question No. 13: Do you find from a preponderance of the evidence that the accident in question was not an unavoidable one? You will answer this question: “It was not an unavoidable accident, or “It was an unavoidable accident, as you may find the facts to be.” ' To which the Jury answered: “We the Jury, answer: It was not an unavoidable accident.” . In the original disposition a majority of the Court (Justice MURRAY dissenting) held that the quoted form of submission constituted reversible error, upon the following authorities; Speer’s Special Issues, § 137; Texas Employers’ Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.2d 658; Gulf, C. & S. F. Ry. v. Giun, Tex.Com. App., 116 S.W.2d 693, 116 A.L.R. 795; Blickman, Inc. v. Chilton, Tex.Civ.App., 114 S.W.2d 646; McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901, writ dismissed by agreement; Fidelity & Casualty Co. v. Van Arsdale, Tex.Civ.App., 108 S. W.2d 550, dismissed for want of jurisdiction; Psimenos v. Huntley, Tex.Civ.App., 47 S.W.2d 622, expressly approved in Texas Employers’ Ins. Ass’n v. Lemons, supra; Harrison-Wright Co. v. Budd, Tex. Civ.App., 67 S.W.2d 670, dismissed for want of jurisdiction. Without expressly receding from that holding, we now withdraw it, since it is not necessary to this decision. But in view of another trial we suggest that the issue of unavoidable accident, if again raised by the evidence, be submitted in the form used upon the trial below, with instructions to the jury that in the event its finding is in the' affirmative the form of the answer should be, “It was not an unavoidable accident”; and that otherwise the answer should be “No.” Gulf, C. & S. F. Ry. v. Giun, supra. As the questions raised in appellant’s remaining assignments of error will probably not arise upon another trial, we pre-termit any discussion of them; but, for the error in failing to instruct the jury on the burden of proof upon the issue of damages, the judgment will be reversed and the cause remanded. The original opinion will be withdrawn, and this substituted in its stead.