Phillips Petroleum Co. v. Booles

SMITH, J. This appeal is from a judgment rendered in favor of J. P. Booles and wife against the Phillips Petroleum Company, in response to answers of a jury upon special issues submitted to thereby the trial court. No objections are urged in appellant’s brief, either to the form of the special issues, or to the sufficiency of the evidence to support the answers of the jury thereto. The jury found, and the court rendered judgment up'on the findings, that the petroleum company, as lessee under an oil and gas lease, negligently razed and destroyed fences, dug and left slush pits, and scattered and left wire and other débris, on the premises of Booles, the lessor, thereby damaging him in amounts found by the jury, and not challenged by the company. Appellant has brought forward into its brief only four assignments of error, in all of which is made in varying forms the single contention that as a matter of law, under the terms of its lease contract, in connection with the evidence, appellant, as lessee, was not bound either to fill up the slush pits on the leased premises, or to pay the cost of doing so. Neither of these assignments was embraced in the motion for new trial filed by appellant in the court below, but all of them were filed subsequent to the overruling of said motion. None of the grounds of the motion for new trial are brought forward into appellant’s brief, or urged in this court, nor was the supposed error now presented to this court' complained of in any form in the court below. It is true, as appellant contends, that an appellant may disregard the form and language of the grounds set out in his motion for new trial filed in the trial court, and file and rely upon additional or separate assignments of error as the basis of his appeal, and this is true even if the case is one tried with a jury and a motion for new trial is necessary. But in such ease the additional assignments subsequently filed must present the same questions for decision here as were raised in the motion and passed on by the trial court, or, as was said by the Commission of Appeals, they must “identify” and be “in consonance with the errors raised in the motion” for new trial. Barkley v. Gibbs (Tex. Com. App.) 227 S. W. 1099. Of course, the rule is different in cases tried before the court without a jury, because in such case's motions for new trial are not required to be filed, but, as was said by Chief Justice Phillips— “In cases where a motion for new trial is required to be filed, errors complained of in the assignments of error, which are required to be set forth in the motion for a new trial and are not there set forth, will be considered as waived, under Rule 24.” Hess, etc., v. Turney, 109 Tex. 208, 203 S. W. 593. The precise language and form of the grounds in the motion need not be preserved in the assignments subsequently filed and presented on appeal, so long as such assignments present the identical question for determination. Appellant, by failing to bring forward into its brief any of the grounds set out in its motion for new trial, either by copying them as written, or by presenting in different form or language the same errors complained of in its motion, will be deemed [440] to liave waived those errors; otherwise the whole purpose of motions for new trial will he defeated. Appellant undertakes to fal\ back upon the familiar contention that the question presented in the brief concerns or presents fundamental error, which must be considered. regardless of assignment. But there is no merit in t^iis contention. The question of whether or not appellant was liable under its contract for the manner in which .it excavated,' used, and left the slush pits on appellees’ premises, is one to be determined by the application of the law to the peculiar facts in the case, which facts should be, and so far as we know, were, properly resolved by the jury, whose findings thereon are not complained of by appellant on this appeal. The judgment is affirmed.