MEMBERS MUTUAL INSURANCE CO. v. MUCKELROY

EVANS, Justice.

We are here concerned with the construction of revised Rule 277, Texas Rules of Civil Procedure, which became effective September 1, 1973.

This suit resulted from an intersection collision between the vehicle of Jasper and Anexial Muckelroy and a vehicle operated by Verdie Webber, an uninsured motorist. The Muckelroys were in a funeral procession proceeding north on Lockwood Street in the righthand lane. Verdie Webber was proceeding south on Lockwood in the inside lane, intending to make a left turn onto Cavalcade Street. As she proceeded to make the lefthand turn, her vehicle was struck by the Muckelroy vehicle. After a jury trial, judgment was entered for the Muckelroys against Verdie Webber and Members Mutual Insurance Company for the aggregate amount of $4,962.50 plus interest. The issues and explanatory instructions submitted to the jury, and its responses, were as follows:

If you have answered Special Issue No. 2 `We do,' and only in that event, then answer:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate ANEXIAL MUCKELROY and her husband, JASPER J. MUCKELROY, for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?

In its first three points of error Members Mutual complains that the trial court erred in submitting Special Issue No. 1 over objection that there were no pleadings sufficient to warrant its submission; that such issue failed to limit the jury to a consideration of the specific acts of negligence alleged (i. e., failure to keep proper lookout and make timely application of brakes) and that the form of the issue constituted a general charge.

Under Rule 277, the trial court is authorized to submit a case on special issues without request of either party or if a party requests, the court is required to submit on special issues. An exception to this requirement, not applicable here, is that "for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge."

The rule provides that special issue submission shall be of those "issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case." The question is negligence is a "controlling issue" in this case.

The rule further provides that it "shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly." In the case before us the trial court elected to make a broad form of submission and we are of the opinion this was authorized by the rule.

The fourth paragraph of Rule 277 provides:

As we understand this provision, considered in the light of other language in the rule, the trial court "may submit" issues in a negligence case in a manner which allows a listing of the claimed acts or omissions so that the issue itself tends to limit the jury's consideration to those particular "claimed acts or omissions", but the trial court is not required to adopt this form of submission. The argument of Members Mutual is that unless the form of submission limits the jury in its consideration to those specific acts or omissions of negligence alleged, the jury is without guidance as to the elements which it may properly consider in its deliberations and its verdict may be founded upon varying convictions of individual jurors as to different acts or omissions. This argument has logic and prior to the revision of Rule 277, formed the basis for the requirement that separate inquiries be submitted regarding each specific act of negligence alleged. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Barclay v. C. C. Pitts Land & Gravel Co., 387 S.W.2d 644 (Tex.1965). However, we believe the intent manifested by the revision of Rule 277 is that the trial court shall have greater discretion in the form of submission in negligence cases, and that the rule abolishes the requirement of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517, that issues be submitted "distinctly and separately." Shasteen v. Mid Continent Refrigerator Co., 517 S.W.2d 437 (Tex.Civ.App.—Dallas 1974, no writ hist.).

In a recent decision, Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974), the rule was explained by Justice McGee as follows:

The revision of Rule 277 brings the submission of issues in personal injury law under the same principles that have been recognized in other areas of the law. Pope, "A New Start on The Special Verdict," 37 Tex. Bar Journal 335, April 1974; Pope and Lowerre, "Revised Rule 277—A Better Special Issue System for Texas," 37 Southwestern Law Journal 577 (1973). For example, in actions for title to land, the controlling issue of "peaceable and adverse possession" has long been submitted "broadly" with appropriate explanatory instructions. Under such method of submission, a jury has been at liberty to respond to the broad question of "peaceable and adverse possession" even though the individual jurors may not have had unanimity of belief as to the various evidentiary sub-issues which formed the basis for their decision. Green v. Blanks, 342 S.W.2d 141 (Tex.Civ.App.—Austin 1960, writ ref'd n. r. e.).

We note that the suggested form of the Pattern Jury Instruction Committee to revised Rule 277, is that which is based upon the fourth paragraph of the rule authorizing the listing of the claimed acts or omissions. This is apparently the favored form of submission in Wisconsin, where a similar method of submission is permitted. Heft & Heft, Comparative Negligence Manual, Section 8.20, 1971; Pope, 37 Tex. Bar Journal 335. While this method may constitute the preferable method of submission in many instances we believe the rule leaves this determination to the discretion of the trial court.

Members Mutual further argues that notwithstanding the revision of Rule 277, the issues must be limited by the form of submission to those specific acts of negligence which are specially alleged in the pleadings. It argues that since the Muckelroys pleaded specific acts of negligence (failure to keep proper lookout and to make timely application of brakes) the trial court was limited under Rule 279 to a form of submission which restricted the jury's consideration to those specific elements. It also argues that Special Issue No. 1 permitted the jury to consider evidence of other possible negligent acts not raised by the pleadings, as for example, testimony from which the jury might have inferred that Verdie Webber had been drinking prior to the accident and that she had failed to give a turn signal indicating her intended left turn.

We cannot agree with these arguments. The purpose of the pleadings is to apprise the opposing parties of the nature of the issues which they will be expected to meet. By appropriate special exceptions, the plaintiff may be required to specify the particular acts or omissions of negligence upon which he relies. If during the trial evidence is offered regarding any claimed acts or omissions not raised by the pleadings, the receipt of such evidence may be properly controlled by ruling of the court. Under the revised rule, where the broad form of submission is adopted, the extent of the jury's consideration of the elements comprising the controlling issue becomes a matter of evidence and argument, subject to appropriate instruction of the court. In our opinion the trial court is not precluded from submitting issues broadly under Rule 277 even though specific acts or omissions comprising the elements of such issue have been specifically plead. Mobil Chemical Company v. Bell, supra. We overrule Members Mutual's points one through three.

Members Mutual's points of error 4 and 5 complain that the trial court erred in failing to submit its requested instructions (pertaining to Special Issue No. 1) as follows:

The instructions requested by Members Mutual in connection with Special Issue No. 1 did not clarify or define words or phrases used in the court's charge which required legal definition but merely restated and applied to specifically pleaded sub-issues, the definition of negligence previously given in the court's charge.

The trial court has considerable discretion in determining which issues are "proper" in submission of its charge. Mobile Chemical Company v. Bell, supra. We cannot say that it abused this discretion in refusing to give these requested instructions and if error was committed, we are of the opinion that it did not amount to a denial of the rights of Members Mutual as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure. We overrule Members Mutual's points of error numbers 4 and 5.

In its sixth and seventh points of error, Members Mutual complains that the trial court erred in submitting Special Issue No. 2 over its objection that the court had failed to define the words "immediate hazard" contained in the related instruction and in failing to submit its requested instruction as follows:

Since the trial court's judgment may be affirmed solely on the basis of Special Issue No. 1, we deem it unnecessary to consider Members Mutual's remaining two points (6 and 7) complaining of error in the manner of submission of Special Issue No. 2.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

On motion for rehearing we have concluded that our opinion requires some clarification. In our opinion, an instruction limiting the jury's consideration to only those acts of negligence pleaded might properly be given by the trial court in an appropriate situation. We hold only that the trial court, in the case before us, did not abuse its discretion in refusing to give the instructions in the form requested.

Motion for rehearing overruled.