Wichita Falls & Oklahoma Railway Co. v. Pepper (134 Tex. 360, 1940)

Mr. Justice Sharp

delivered the opinion of the Court.

The principal question presented here relates to the power of the trial court to enter judgment in a cause submitted to a jury on special issues, in the absence of the submission to the jury of certain issues, and a finding made thereon by the jury, under the provisions of Art. 2190, Revised Civil Statutes.

The parties hereto will be designated as they were in the trial court. A. C. Pepper sued the Wichita Falls & Oklahoma Railway Company and the Wichita Valley Railway Company for damages to his growing crops, based upon the negligence of the defendants by causing flood waters to cover the land. The case was submitted to the jury on special issues, and judgment was rendered for plaintiff. The Court of Civil Appeals at Fort Worth affirmed the judgment of the trial court. 101 S. W. (2d) 365. In view of the confusion that has resulted from the construction of Art. 2190, this Court has decided to reexamine the question and reannounce rules relating to the submission of special issues. For this purpose a writ of error was granted.

The gist of defendant’s main contention is that, this being a suit for partial damages to crops, and not for total loss, no proper judgment could be rendered on the verdict of the jury as to the loss sustained to the cotton crop because of the failure of the trial court to submit to the jury an issue as to what amount of cotton was actually raised by plaintiff on the land, and because of such failure the trial court could not take that question from the jury and determine same for the purpose of rendering a judgment on other issues answered.

Pepper was occuping certain land as a tenant, and alleged that his damage resulted from the failure of defendants to maintain adequate culverts and sluiceways beneath its roadway, and that defendants had negligently piled a large number of timbers or piling in the borrow pit, which obstructed the flow of water from the land occupied by plaintiff. He claimed damages for the total destruction of a three-acre garden tract and partial destruction of his cotton crop. The jury found that the defendants failed to maintain adequate culverts and sluice-ways.

The case was submitted to the jury on special issues, and the jury found that acts of the defendants complained of by plaintiff constituted negligence, and that such negligence was the proximate cause of the damage to plaintiff’s crops and garden.

Special issue No. 10 and the answer of the jury thereto read as follows:

“What do you find, from a preponderance of the evidence would have been the number of bushels of corn that plaintiff would have raised from the corn that was up on June 13th had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that same was damaged by the acts of the defendants) ? In answering this issue you will take into consideration the three-thirds of the crop and not merely the tenants portion.” Answer: “3760 bushels.”

In answer to special issue No. 10a the jury found that the plaintiff produced from the corn that was up on June 13th 1575 bushels. In answer to special issue No. 11 the jury found that the reasonable cost after June 13th of cultivating, gathering, and marketing said corn was $205.50. In answer to special issue No. 12 the jury found that the value per bushel of the corn mentioned in special issues Nos. 10a and 11 would have been 50(i per bushel.

Special issue No. 13 and the answer of the jury thereto read as follows:

“What do you find from a preponderance of the evidence would have been the number of bales of cotton of an average weight of 500 pounds that plaintiff would have raised had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that the same was damaged by the acts of the defendants) ? In answering this issue you will take into consideration the four-fourths of the crop and not merely the tenant’s portion.” Answer: “28 bales.”

In answer to special issue No. 14 the jury found that the reasonable cost after June 13th of cultivating, picking, ginning, and marketing the cotton, had it not been so damaged, was the sum of $586.10. In answer to special issue No. 15 the jury found that the value per pound of said cotton at the time of maturity and marketing same was 11