Rule 279. Omissions From the Charge (1988)

TEXT

Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived. When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment. A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after verdict, regardless of whether the submission of such question was requested by the complainant.

ADVISORY OPINIONS

(No. 37) Question: Is it necessary for the defendant in a negligence case specially to plead the issue of unavoidable accident to entitle him to an affirmative submission of such issue?

Answer: Yes. Rule 279 provides that a party shall not be entitled to an affirmative submission of any issue in his behalf "where such issue is raised only by a general denial and not by an affirmative written pleading on his part." Defendant's right to present inconsistent defensive theories under the general denial is not cut off by this rule. He may introduce evidence on the point and argue to the jury that the injury and damage to the plaintiff were the result of unavoidable accident. If he desires an affirmative submission of such issue, however, he must plead it. Under this rule the burden of proof is not changed from what it would have been under the general denial. See excerpts from lecture of Judge James P. Alexander and from article of J. B. Dooley quoted on the point in Franki's Vernon's Texas Rules of Civil Procedure, pages 293, 294.

5 Tex. B.J. 236 (1942) reprinted in 8 Tex. B.J. 17 (1945).

(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. 52) Question: Where plaintiff invokes the doctrine of res ipsa loquitur and makes no specific averments, simply pleading that the instrumentality was under the exclusive control of the defendant and that the injury is such as in the ordinary course of things does not occur, if the one having such control uses proper care, - would plaintiff, after the evidence is in, in view of Rule 279, be required to amend his pleadings so as to make specific averments before being entitled to an affirmative submission of the various phases of negligence, or , on the other hand, would he, by reason of having invoked the doctrine of res ipsa loquitur, he entitled to submission of all ultimate fact issues raised by the evidence, without such amendment?

Correspondent in connection with the above question quotes a part of Rule 279 reading that "A party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part."

Answer: The quoted wording of Rule 279 applies to so-called issues that can be raised under the general denial. It does not refer to theories under affirmative pleading either of plaintiff or of defendant, whether general or particular. In the latter respect the rules make no change from the former practice. If under the former practice a plaintiff using general affirmative pleading was entitled to affirmative submission on various phases of negligence he is still entitled to such submission insofar as pleading is concerned. There has been no change here from the standpoint of pleading. However, no such practice can now be required to an extreme, for Rule 279 reads that, "Where the court has fairly submitted the controlling issues ... the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue."

5 Tex. B.J. 288 (1942) reprinted in 8 Tex. B.J. 21 (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).