Montrief & Montrief v. Fort Worth Gas Co.

LEDDY, J. Plaintiffs in error insist in their motion for rehearing that the judgment of the trial court in favor of Henry Bragg against them should be reversed and rendered because the undisputed evidence shows that they were not guilty of negligence, which was the proximate cause of the injury complained of. We are unable to agree with this contention. We think the question as to whether plaintiff in error’s negligence was a proximate cause of Bragg’s injuries, in the state of the evidence, was properly one for the jury. It is further insisted that the judgment of the trial court should he affirmed as rendered, because the evidence shows as a matter of law that the Fort Worth Gas Company was guilty of active negligence as against merely passive negligence on the part of plaintiffs in error. Plaintiffs in error by proper plea asserted the above by way of cross-action against its codefendant, the Fort Worth Gas Company. It did not, however, request that such issue be submitted to the jury, notwithstanding it is admitted that the questions of active and passive negligence were disputed matters of fact. It is asserted that the trial court having rendered judgment for them over against their codefendant, a finding in their favor on such issues will be implied, and article 2190, R. S. 1925, is relied on to sustain this position. This article of our statute, under the construction given it by our Supreme Court, does not authorize a trial court to determine an issue involving a complete ground of recovery which has not been submitted to the jury, but only applies to such omitted issues as are incidental to and support the issues of fact which are submitted and found by the jury. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591 (not yet officially reported). The issue of active and passive negligence constituted an independent ground of recovery. In fact, it was the sole basis of the cross-action in favor of plaintiffs in error against the Fort Worth Gas Company, and inasmuch as the case was being tried to a jury, a failure to request the submission of the issue upon which such cause of action was based was a waiver thereof. Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. [965] 902; San Antonio Public Service Co. v. Tracy (Tes. Civ. App.) 221 S. W. 637; G. H. & S. A. Ry. Co. v. Price (Tex. Com. App.) 240 S. W. 524. It follows that we must bold tbe judgment of tbe trial court erroneous, as it was not authorized to render a judgment upon said cross-action until tbe issue upon wbicb it was based was submitted to, and a finding ’ made tbereon, by tbe jury. The motion for rehearing should be overruled.