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Rule 277. Special Issues (1973)

TEXT

In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case, except that, for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge.

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. It shall not be objectionable that a question is general or includes a combination of elements or issues. Inferential rebuttal issues shall not be submitted. The placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question.

In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to the objection that it is a general charge.

The court may submit special issues in a negligence case in a manner that allows a listing of the claimed acts or omissions of any party to an accident, event, or occurrence that are raised by the pleadings and the evidence with appropriate spaces for answers as to each act or ommission which is listed. The court may submit a single question, which may be conditioned upon an answer that an act or omission occurred, inquiring whether a party was negligent, with a listing of the several acts or omissions corresponding to those listed in the preceding question and with appropriate spaces for each answer. Conditioned upon an affirmative finding of negligence as to one or more acts or omissions, a further question may inquire whether the corresponding specific acts or omissions (listing them) inquired about in the preceding questions were proximate causes of the accident, event, or occurrence that is the basis of the suit. Similar forms of questions may be used in other cases.

In any case in which issues are raised concerning the negligence of more than one party, the court shall submit an issue inquiring what percentage, if any, of the negligence that caused the occurrence in question is attributable to each of the parties found to have been negligent, and shall instruct the jury to answer the damage issues without any reduction because of negligence, if any, of the person injured.

The court may submit an issue disjunctively where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. For example, the court may, in a workmen's compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled.

The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.

Amended by order of May 25, 1973, eff. Sept. 1, 1973: The words "controlling the disposition of the case that are” have been inserted in the first paragraph; the provisions of the former rule requiring issues to be submitted distinctly and separately, in the affirmative, and in plain and simple language, have been deleted; the provision concerning placing the burden of proof has been rewritten; the first three sentences of the second paragraph and all of the fourth, fifth and seventh paragraphs have been added; the last sentence of the original rule has been deleted; and a number of minor textual changes have been made.

ADVISORY OPINIONS

(No. 27-a) Question: When a justice court case is appealed to the county court and the pleadings are reduced to writing under Rule 525, do the oral pleadings in the justice court go out of the case to the extent that they cannot be shown?

Answer: In the sense that the oral pleadings go out of the case for the purpose of trial and relief in the county court, we consider that the situation is one like that of amendment: The new pleading takes the place of the old and the old is no longer a part of the case. However, it may become important to show what the old pleadings were in connection with contentions under the statutes of limitation and with contentions that a new cause of action has been set up for the first time in the county court.

It should be added that while, therefore, the written pleadings in the county court are the pleadings upon which the case is tried, if the trial is upon certain proof that is variant from or has no support in the written pleadings, but no objection or the like is made to the variance or departure, Rule 67 applies and it will be as though there had been sufficient pleading. In this connection see also Rule 66 as to ready amendment if objection is made. Doubtless in a case of appeal from justice to county court the rules above cited would not go to the extent of allowing a new cause of action to be set up in the county court or recovered on in the county court; but with this qualification there should be little difficulty about variance or departure. And, of course, by the time of a special issue submission all pleadings relied upon in the submission would have to be in writing, under Rules 67, 277, and 279, unless the defect should be waived under Rule 274.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).

(No. 88) Question: Rule 67 reads "When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings ... provided that written pleadings, before the time of submission, shall be necessary to the submission of special issues, as is provided in Rules 277 and 279." Does this rule mean that it is necessarily reversible error to submit special issues when they have not been raised by the written pleadings as provided in the above rule and in Rules 277 and 279?

Answer: No. Rule 274 was amended at a later date than the date upon which the above requirements were promulgated. This later amendment reads "Any complaint as to an instruction, issue, definition or explanatory instruction on account of any defect, omission, or fault, in pleading, shall be deemed waived unless specifically included in the objections." This amendment is contained, it will be recalled, within a rule, which, regulates objections to the charge of the court. So that the opinion of the subcommittee is that issues, submitted, without written pleadings to support them will not be erroneous upon that ground unless objection upon, that ground is made.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).

Question: Rule 277, among other things provides:

"* * * * provided that, if it be deemed advisable the court may submit disjunctively in the same question two inconsistent issues where it is apparent from the evidence that one or the other of the conditions or fact inquired about necessarily exists. For example, the court may, in a workmen's compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled."

It is now permissible to submit these two issues disjunctively in two separate issues, first inquiring if the disability is permanent, then preface the next issue by: "If you have answered the foregoing question 'Yes' you need not answer the following issue, but if you have answered the foregoing question 'No,' you shall answer the following issue" and then inquire if the disability is temporary?

Answer: Prior to the effective date of the rules, the conditional submission of such issues was reversible error. SeeFederal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943) and cases therein cited.

Rule 277 provides that two inconsistent issues may be submitted disjunctively in the same question where it is apparent that one or the other of the conditions or facts inquired about necessarily exists.

Since the rule provides that such issues may be submitted disjunctively in one issue, the question is whether or not such issues may be disjunctively submitted in two issues, by a conditional submission of the second issue.

The result of such submission in one question or a conditional submission in two issues is the same, i.e. a disjunctive submission. Since Rule No. 1 provides that the rules should be given a liberal construction, it is the opinion of the committee that such disjunctive or conditional submission of the issues in two questions is permissible. To hold otherwise would be to violate the spirit of the rules, and give them a strict construction violating Rule No. 1.

8 Tex. B.J. 281 (1945).

Question: "In a case submitted on special issues where the question at issue is whether or not a deed is a mortgage or a deed absolute would the trial court be authorized to submit in conjunction with other instructions, the following instruction to the jury: 'You are instructed that evidence relied on for the purpose of affixing the character of a mortgage to a deed absolute must be clear, strong and convincing.' "

Answer: No. The Committee is of the opinion that such an instruction would constitute reversible error. Rule 277 does not contemplate such a general charge. See Johnson v. Zurich General Accident & Liab. Co., 146 Tex. 232, 205 S.W.2d 353 (1947).

11 Tex. B.J. 277 (1948).