Newspapers, Inc. v. Love

CALVERT, Chief Justice

(dissenting).

A careful reading of the Court’s opinion will disclose that the judgments of the Court of Civil Appeals and trial court have been reversed for one reason and one reason only: the erroneous and prejudicial wording of Special Issue No. 1. Admissibility of the testimony of the witnesses, Behrman and Wheeless, is discussed, but only as incidental to the holding that the wording of Special Issue No. 1 was erroneous. This is manifest from two sentences, one near the beginning and one near the end of the opinion. The first: “We are, however, of the opinion that in view of the evidence adduced upon the trial the independent contractor or servant issue was improperly submitted to the jury and accordingly the judgment against Newspapers, Inc. must be reversed and the cause as to the petitioner remanded for another trial.” The second: “In view of the testimony of Wheeless and Behrman, the inclusion of the evidentiary inquiry as to 'exercise’ of control, in Special Issue No. 1 was clearly prejudicial to the petitioner.” There is also much talk in the Court’s opinion about written contracts which are used as a subterfuge or which have been abandoned, but no such issues were submitted and reversal has not been ordered because of failure to submit them. Indeed, it could not have been because there was no request for the submission of such issues and no objection for failure to submit them.

Special Issue No. 1 is quoted in the Court’s opinion. It inquired whether the jury found that the relationship between Cargile and Newspapers, Inc. was such that Newspapers “retained or exercised the power to control, not merely the end sought to *593 be accomplished, but also the means and details of its accomplishment, not merely what should be done, but how and when it shall be done.” A careful analysis of the opinion will disclose that what the Court has held is that whether Newspapers “exercised the power to control” is an eviden-tiary and not an ultimate issue; that the “essential inquiry” in the case is whether Newspapers had “the contract right to control”; and that while the testimony of Behrman and Wheeless that Newspapers directed and controlled the details of their work would have been admissible if the issue had been worded correctly, it was not admissible as proof that Newspapers “exercised the power to control” Cargile, but may have been appropriated by the jury as such.

I agree with the Court’s major thesis that in a suit for damages based upon the doctrine of respondeat superior the supreme test of the relationship between the one causing the harm and the one sought to be charged is “right of control.” I agree also that Special Issue No. 1 is defective in form and does not properly submit the ultimate issue on this phase of the case, although submission in the form used is understandable in light of former expressions of this Court in Elder v. Aetna Casualty & Surety Co., 149 Tex. 620 , 236 S.W.2d 611 , and other cases. But a mere defect in an issue does not authorize reversal of a judgment based on the jury’s answer. Under our Rules of Civil Procedure, judgments may be reversed only for errors committed by trial courts and Courts of Civil Appeals, which errors must have been properly preserved for review.

A trial judge does not commit error, as that term is used in procedural law, by merely drafting a special issue in imperfect or defective form; he commits error only when he overrules a proper objection to the issue and refuses to correct it to meet the objection. The first sentence of Rule 274, Texas Rules of Civil Procedure, prescribes the requisites of a proper objection. That sentence reads: “A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection." 1 We have said that “The purpose of that rule is to give the trial court an opportunity to correct any errors in the charge so that the case may be properly submitted.” Missouri Pacific Railroad Co. v. Kimbrell, 160 Tex. 542 , 334 S.W.2d 283, 285 . If the Rule is to serve its intended purpose, the opportunity given the trial judge must be a fair and reasonable one; and to that end, the requirement that the grounds of the objection be stated distinctly is to afford the trial judge an opportunity fairly and reasonably to evaluate the purported defect. In other words, the purpose of the Rule is defeated if a party may successfully urge on appeal a ground for his objection substantially different from the ground given the trial court. By like token the purpose of the Rule is defeated and the trial judge is unfairly found guilty of error if an appellate court may supply a grotmd of objection substantially different from that given by the objecting party. That, in my judgment, is what the Court has done in this case; and we have compounded our wayward action by holding the Court of Civil Appeals to have erred in failing to reverse on a ground not reasonably presented to it, or, for that matter, to us. The crucial question here, then, is: did Newspapers distinctly point out in its objection the grounds on which we have held Special Issue No. 1 defective? Or, to be more charitable, did Newspapers’ objection, fairly and reasonably interpreted, advise the trial judge that it objected to Special Issue No. 1 on the grounds on which we have held it defective? I think not.

The objection cannot be properly or fairly evaluated by taking the first part of it out of context with the second part. The trial judge had to evaluate the objection as a whole. That part of the objection which *594 relates to the question under discussion reads as follows:

“ * * * and this defendant further objects and excepts to said Special Issue No. 1 for the reason that it would seek to make this defendant liable for the acts of C. E. Cargile if this defendant either retained or exercised the power to control, whereas the true test is whether or not the alleged employer has the power to control and the usurpation of such power does not make the relationship between the parties one of employer and employee or principal and agent or master and servant; and accordingly even if such special issue were answered in the affirmative no '.judgment could properly be rendered against this defendant thereon in view of the fact that such affirmative answer might merely mean that this defendant was exercising and professing to have the power to control which in fact it did not have under its agreement with said. C. E. Cargile, and such usurpation of .the right to control would not change the relationship actually existing between the parties.”

If I may he credited with any power of logical analysis whatever, even the first part of the objection did not reasonably suggest to or advise the trial judge that the issue was defective because it submitted an evidentiary rather than an ultimate issue; or because the wording of the issue was such that the jury might consider testimony of actual control over Behrman and Wheeless as proof of actual control over Cargile; or because the jury could answer affirmatively if only sporadic acts rather than a persistent course of actual control over Cargile were proved. What the first part of the objection plainly said to the trial judge was that the issue was defective because the true test of the relationship between Newspapers and Cargile was “power to control,” and that no amount of proof of actual control (¿’usurpation of such power,” said the objection) could make the relationship that of employer and employee, principal and agent or master and servant. Then, lest the first part of the objection be misunderstood, explanation of what was meant was deemed necessary. “Accordingly,” said the last part of the objection, even if the issue were answered in the affirmative, no judgment could be rendered for the plaintiff “in view of the fact that such affirmative answer might merely mean that this defendant was exercising and professing to have the power to control which in fact it did not have under its agreement with said C. E. Cargile, and such usurpation of the right to control would not change the relationship actually existing between the parties.” The only agreement which Newspapers claimed to have with Cargile was the written contract, the same in all particulars as the written contract entered into with all district managers. Thus, the second part of the objection said that the grounds thereof were that the issue was defective in submitting “actual control” because no “power to control” was reserved in the written contract, and no usurpation of power to control could change the relationship fixed by the contract.

With this analysis of Newspapers’ objection, it seems quite clear to me that the trial court did not err in overruling it. The grounds of the objection were clearly unsound. As stated in the objection, the true test of the relationship between the parties is “power to control,” but it is totally unsound to say that no amount of proof of actual control can establish “power to control” and a relationship of employer and employee, principal and agent or master and servant. It is equally unsound to say that because “power to control” is not reserved in a written contract, “power to control” may not be established by exercise of “actual control” or usurpation of the “power to control.” To establish the unsoundness of these grounds of the objection, I need cite only Elder v. Aetna Casualty & Surety Co., 149 Tex. 620 , 236 S.W.2d 611 , our latest decision on the subject, although the law books are full of decided cases to the same effect. But rather than accept my *595 interpretation of Newspapers’ objection, let us pursue the matter in the appellate courts and see what Newspapers says it meant by its objection.

The question raised by the objection was briefed in the Court of Civil Appeals under Newspapers’ 7th Point of Error. After stating that Cargile was operating under a written contract making him an independent contractor, the statement and argument under the point continues: “Appellees, however, undertook to show that appellant exercised some control over Cargile beyond that retained in the written contract and that he was an employee for whose conduct appellant was liable. * * * ” Special Issue No. 1 and a part of the objection thereto are quoted, followed by this paragraph :

“The issue as submitted to the jury permitted an affirmative answer if appellant — no matter how wrongfully— exercised 2 control over the details of the work. There is thus presented the right to control under the agreement between the parties as opposed to the exercise of the power to control, despite the fact that no such right is retained or exists.”

In arguing the question as it had thus stated it, Newspapers cited and quoted from a number of decided cases in which it had been held that proof of acts of actual control was not legally sufficient to overcome a written contract establishing an independent contractor relationship. It then discussed other cases in which it had been held that proof of acts of actual control was sufficient to establish a master-servant or employer-employee relationship, the last of which is Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133 , 213 S.W.2d 677 , in which there was no written contract between the parties. In its opinion in the case the Court stated that evidence of actual control “is relevant as tending to prove what the contract really contemplated.” With reference to that case, Newspapers said:

“It is quite plain that the Court’s statement that the control actually exercised by the employer was relevant applied only to a situation where the character of control which the employer had was controverted. It would have no application to this case or any other case where the control to he exercised by the employer is specifically set out in a written contract.”

Finally, Newspapers summed up its argument under the point of error in these words:

“To recapitulate, it is appellant’s position that since the contract was in writing and since it set out such control as appellant had over Cargile the jury should have been permitted to consider only the right of control which appellant had and that they should not have been permitted to consider any control actually exercised beyond that which had been rightfully reserved. The trial court should therefore have sustained appellant’s objection to the special issue and limited the fury’s consideration to the right of control which appellant had retained."

The Court of Civil Appeals overruled the point of error just as the trial court overruled the objection, no doubt for the same reason. Newspapers was not asserting that the trial court erred in overruling its objection for the reasons this Court has given. It was asserting a totally different and legally unsound reason, the same unsound reason which I have stated was given as grounds for its objection in the trial court.

The question was briefed by Newspapers in this Court under its Second Point of Error. The point of error reads as follows :

“The Court of Civil Appeals erred in holding that petitioner’s exception to *596 Special Issue No. 1 was properly overruled although said issue permitted the jury to find that Cargile was petitioner’s ‘agent’ (defined to mean servant) if it exercised control over him, even though ■such exercise of control may have been wholly without right and in violation of the written contract between petitioner and Cargile.’’

In discussing this point of error (which •on its face interprets the objection to Special Issue No. 1 as I have interpreted it), Newspapers again made the meaning of its obj ection clear. It states:

“ * * * In those cases where there is doubt as to the terms of the contract then the control actually exercised may be looked to in order to ascertain the terms. In a case such as this, however, where the terms of the contract are admitted it is the contract which determines the relationship.”

Again:

“If there is doubt as to the right of control, then the control actually exercised is evidentiary of the right. Where, as here, the contract is clear the control actually exercised is immaterial.”

And again:

“From the above authorities it is abundantly clear that Special Issue No. 1 should have been limited to the right of control which petitioner actually possessed ; and that the control which it exercised could be considered only as evidence of the relation if there had been some doubt as to the terms of the contract.”

And once again:

“Under the above authorities they [the jury] should not have been allowed to consider control exercised over Cargile, and much less were they entitled to •consider control allegedly exercised ■over Behrman and Wheeless.”

It thus appears, quite clearly, that Newspapers has in the Court of Civil Appeals and in this Court, interpreted their own objection exactly as I interpret it and contrary to the way it is interpreted by the Court. Appealing litigants are entitled to fair treatment at the hands of this Court, but trial courts and Courts of Civil Appeals are also entitled to fair treatment. It is not fair treatment of those courts to hold that they have committed error in disposing of a matter when we do so upon reasons or grounds never presented to them. Nor, may I add, is it within our authority or competence under our Rules of Civil Procedure to reverse a judgment of a Court of Civil Appeals on grounds or for reasons not urged in this Court.

In two cases considered simultaneously with consideration of this case on rehearing we have held that in the absence of objection a trial court judgment may not be reversed because of the wording of a special issue, even though the wording is patently erroneous and may serve to predicate or excuse liability on a legally unsound ground. See Allen v. American National Ins. Co., Tex., 380 S.W.2d 604 , and Continental Casualty Co. v. Street, Tex., 379 S.W.2d 648 . It seems to me that our holding here is incompatible with our holdings in those cases. I can see no purpose in requiring objection to an issue if we may reverse on grounds not stated in the objection and not urged on appeal as a basis for reversal.

I add at this point that how the Court can have held that the jury probably appropriated evidence that Newspapers exercised control over Behrman and Wheeless as proof that it also exercised control over Cargile is hardly understandable. Cargile testified fully with respect to acts of control exercised by Newspapers over his operations, both by deposition and in person as a witness on trial. He was examined closely with respect to such matters. The only evidence of control, of any substance, over Behrman and Wheeless not otherwise *597 in the record as to Cargile related to the use of carrier boys. As pointed out in the Court’s opinion, this evidence could not possibly be applied to Cargile’s operations to show actual control since he did not use carrier boys; it may possibly have been considered by the jury as proof of “right of control,” but could hardly have been considered as proof of exercise of actual control over Cargile.

In writing on rehearing the Court recognizes that the ultimate issue in this case and in other cases of this type is whether at the time of the event upon which liability must be predicated the relationship between the one causing the harm and the one sought to be charged was that of servant (employee or agent) or of independent contractor. I agree. I also agree that this matter may be submitted in separate special issues or dis-junctively in one special issue.

I am somewhat concerned that the Court’s opinion may be misleading in its statement that the focal point of inquiry relates to the agreement between the parties as it actually existed at the time of the event. It should be pointed out that the Court is not speaking of an express contractual agreement, either written or oral, but uses the term in its broadest sense as including a consensual relationship arising out of the acts and conduct of the parties. This is clearly inferable from the Court’s holding that a persistent course by the employer of actual control of the conduct of one made an independent contractor by a written contractual agreement can convert the relationship into that of master and servant. This interpretation of the language in the opinion on rehearing leaves Elder v. Aetna Casualty & Surety Co., 149 Tex. 620 , 236 S.W.2d 611 , and other cases of like holding in full authoritative force.

Newspapers’ first point of error in this Court asserts that the evidence adduced on trial is legally insufficient to support the judgment for respondents, and seeks a reversal and rendition of judgment that the plaintiffs take nothing. That point has been overruled. I agree with that action. Petitioners have five other points of error which the Court has not considered or decided; therefore, I do not feel called upon to evaluate their merit in this dissent.

For the reasons stated earlier in this opinion, I respectfully dissent.

WALKER and SMITH, JJ., join in this dissent.

. Emphasis supplied throughout unless otherwise indicated.

. Emphasis the briefer’s.