The opinion
NORTHCUTT, Justice.
I respectfully dissent.
This suit was brought by Violet M. O’Keeffe, individually and as next friend for certain other plaintiffs, against John Lanham Higginbotham, Higginbotham Cattle Co. and Higginbotham Bros. & Co. for damages resulting from the death of William T. O’Keeffe; William T. O’Keeffe being the husband of Violet M. O’Keeffe and the father of the other interested plaintiffs. Higginbotham Cattle Co. was granted a peremptory instruction at the close of the plaintiff’s case and will not be considered further herein. The defendants, John Lan-ham Higginbotham and Higginbotham Bros. & Co., will hereafter be referred to as appellants and all the plaintiffs as ap-pellees.
For their cause of action, the appellees pleaded as follows:
“Violet M. O’Keeffe would show that she is the surviving wife of William T. O’Keeffe who died as a result of injuries received in an automobile collision which occurred on or about the 29th day1 of January, 1959, about 12:30 P.M. That her husband, William T. O’Keeffe, just prior to his death, was driving his 1956 model Ford automobile, going south on Highway 214, being about six (6) miles north of Denver City in Yoakum County, Texas, when he reached a point on the rise of a hill about 275 feet south of the intersection of Highway 214 and Highway 396, commonly known as the Bennett Road. William T. O’Keeffe was traveling at a lawful and prudent rate of speed on his own proper side of the highway and at that point Defendant John Lanham Higginbotham suddenly crashed into his rear knocking the Ford directly into the path of an on-coming vehicle causing a head-on collision, which resulted in the death of William T. O’Keeffe. Just prior to the collision, John Lanham Higginbotham had swerved his Buick to the left of the center strip as he was traveling south on Highway 214, to pass the Ford while on a hill, saw the approaching vehicle from the south, and cut back to his right with the left front of the Buick striking the right rear of the Ford pro *361 pelling the Ford directly into the path of the approaching vehicle.”
Then appellees pleaded Higginbotham was negligent in driving the Buick automobile while under the influence of intoxicating beverages; in operating the automobile at an excessive rate of speed under the attending circumstances; in attempting to pass the vehicle driven by William T. O’Keeffe at a time when he could not do so with safety; in failing to keep his automobile under proper control at the time in question; in failing to apply his brakes in time to avoid the collision; in failing to keep a proper lookout; and in failing to yield the right-of-way to O’Keeffe at the time in question. Then pleaded that each and every allegation of negligence, whether taken singularly or together, was a proximate cause of the collision resulting in the injuries and death of William T. O’Keeffe.
Appellants denied in appellants’ pleading and in their testimony that Higginbotham ever hit the Ford driven,by Mr. O’Keeffe; but that after the Ford and the pick-up collided, the Ford swung around and the right rear of the Ford hit the left front of the Buick, and that was the first time th'e Ford and Buick came in contact with each other. The case was tried to a jury upon special issues, and, upon the answers of the jury, judgment was rendered for the appellees for the sum of $170,000. From that judgment, the appellants perfected this appeal.
In presenting appellees’ contention on the different alleged negligence acts of Mr. Higginbotham, the Court asked the jury if they found from a preponderance of the evidence on the occasion of the collisions in question that Higginbotham did a certain thing and then asked whether the act was negligent and if that negligence was a proximate cause of collisions in question. The appellants presented their exceptions to the Court’s charge in submitting the issues as., “collisions” in that the use of the plural in connection with collisions was a charge upon the weight of the evidence. The appellees pleaded only one collision as the real cause of the accident and that was the hitting of the Ford by the Buick. The trial court overruled all of appellants’ exceptions to the Court’s charge.
Appellants presented their appeal upon nine points of error, but since I am of the opinion that the case should be reversed, I will only discuss points six and eight presented by appellants, since their other points might not arise upon another trial. However, I agree with the majority opinion that the damages assessed under this record were excessive. By appellants’ sixth and eighth points of error, it is contended that the trial court erred in charging on the weight of the evidence to the effect that there were two separate and distinct collisions in the-case.
The real question here involved is, did the Buick which was driven by Mr. Higgin-botham hit the Ford that was driven by Mr. O’Keeffe? The burden was upon the ap-pellees to establish and secure proper finding by the jury upon the proper issues involved:
Under the theory of appellees, unless the Buick driven by Mr. Higginbotham struck the Ford driven by Mr. O’Keeffe and drove it across the highway in front of his pickup, the appellants would not be liable for the death of Mr. O’Keeffe. When the trial court submitted its special issues based upon the “collisions in question”, that was. submitting it as a fact to the jury that there was a collision between the Buick and Ford as alleged by the appellees. The circumstantial evidence as produced was to the effect that the Buick hit the Ford and caused it to have the wreck with the pickup. The eye witnesses to the wreck testified the Buick never did hit the Ford at all but that the accident happened as contended by the appellants. The engineer, Melton, testified the accident could not have happened any way other than as contended by the appellants.
*362 Appellees pleaded that the Buick crashed into the rear of the Ford knocking it directly into the path of the on-coming vehicle (the Chevrolet pick-up) causing a head-on collision which resulted in the death of William T. O’Keeffe. Mr. O’Keeffe’s death happened by the collision of the Ford and Chevrolet pick-up. Then the real question to determine is whether the Buick knocked the Ford into the path of the oncoming Chevrolet pick-up. Consequently, if the Ford driven by Mr. O’Keeffe was never struck by the Buick compelling the Ford into the path of the on-coming pickup, the only collision involving the death of Mr. O’Keeffe was the one between the Ford and the pick-up. Since it was a disputed issue as to whether the Buick struck the O’Keeffe Ford, the appellees should have had a finding of the jury thereon. In the absence of such a finding, and the court’s special issues asking whether certain facts existed on the occasion of the collisions in question, was saying Higgin-botham hit the Ford knocking it into the path of the pick-up. In other words, the manner in which the case was submitted to the jury simply stated, was Higginbotham negligent in these particulars when he hit the Ford. If the Higginbotham car did not strike the O’Keeffe car and knock it directly into the path of the Chevrolet pick-up, as alleged by appellees, and it certainly was a question of fact, the acts of Higginbotham could not have been the proximate cause of the accident and death of Mr. O’Keeffe.
The appellants excepted to the Court’s charge, and the Court overruled the exceptions and also overruled appellant’s motion for new trial involving their exceptions. I think these exceptions and objections were sufficient to call to the Court’s attention the failure of the charge to contain issues on which the opposite parties relied, and that the objections need not be accompanied by a tender of an issue in proper form. Texas Employers’ Ins. Ass’n v. Thames, Tex.Civ.App., 236 S.W.2d 203 (writ refused). The defendants owed no duty to request submission of issues essential to the plaintiff’s recovery. Alexander v. Good Marble & Tile Co. et al., Tex.Civ.App., 4 S.W.2d 636 (writ refused), Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App., 172 S.W.2d 991 (writ refused). It was plaintiff’s duty to request that a correct special issue be submitted to the jury as to whether the Buick struck the Ford as contended by appellees. The best appellees could contend was that their circumstantial evidence in the face of direct testimony presented a controversial question as to the collision of the Buick with the Ford as was alleged. Certainly the appellants made exceptions to the charge sufficiently clear to call the Court’s attention to the incorrectness of the same. Schoenberg v. Forrest, Tex.Civ.App., 228 S.W.2d 556 (writ refused N.R.E.).
Under this record, and, as shown in the case of City of Houston v. Woolridge et al., Tex.Civ.App., 241 S.W.2d 641 (writ refused N.R.E.), I think the trial court should have submitted the question of whether the Buick struck the Ford and propelled it across the highway directly in front of the pick-up instead of assuming the Buick collided with the Ford as contended'by appellees. As I view the charge,, it amounted in legal effect to a charge on the weight of the evidence. I think the judgment of the trial court should be reversed and remanded.
Supplemental Opinion.
DENTON, Chief Justice.
On November 7, 1960, appellee, ■ Violet M. O’Keeffe, filed a remittitur of ' $25,000 in compliance with the suggestion of remittitur in the majority opinion of date October 31, 1960. The judgment of the trial court will be reduced by the amount of the remittitur and as so modified the judgment of the trial court is affirmed.