# Pure Oil Co. v. Pope > Court of Appeals of Texas · October 1, 1934 · 75 S.W.2d 175 URL: https://www.frixlaw.com/law-library/cases/9828380 ## Case - **Full name:** PURE OIL CO. v. POPE Et Al. - **Court:** Court of Appeals of Texas - **Decided:** October 1, 1934 - **Citations:** 75 S.W.2d 175 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Walker - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828380 ## Opinion text On Rehearing. We are not in conflict with our holding in Marshburn v. Stewart, 295 S. W. 679 ; nor was it our purpose “to change the law at this time relating to the filing of supplemental briefs,” as appellant insists, in our holding in the original opinion herein wherein we say: “As we understand the rules of briefing and the authorities construing them, there is no authority in law authorizing us to consider this supplemental brief.” Though appel-lees filed no formal motion to strike the supplemental brief, they advanced against it the proposition that appellant was estopped to rely upon the assignment advanced therein on the ground that it “did not raise or present the issue in its original brief.” Evidently appellees and the court both construed this proposition as sufficient to invoke rule No. 37, which reads as follows: “Briefs; Amendment of: The brief of either party may be amended by a citation of additional authorities if filed and notice be given counsel for opposite party one day before the case is called. No other amendment of the brief shall be allowed except by permission and under direction of the court.” The following authorities fully sustain our conclusion that the supplemental brief should not be considered: Glover v. Houston Belt & Terminal Railroad Co. (Tex. Civ. App.) 163 S. W. 1063 ; Houston Belt & Terminal Co. v. Glover, by Commission of Appeals, 213 S. W. 597 ; St. Louis Southwestern Railway Co. v. Texas Packing Co. (Tex. Civ. App.) 253 S. W. 864 ; Greene Gold-Silver Co., v. Silbert (Tex. Civ. App.) 158 S. W. 803 ; Tunnell v. Moore (Tex. Civ. App.) 53 S.W.(2d) 324 . Eor a second reason, Marshburn v. Stewart is not in point. In that case we had before us the issue of considering only certain new propositions; in the case at bar we have a new assignment of error, knowingly omitted from the original brief. It is thp law beyond dispute that the assignments of error go to the very foundation of appellant’s brief, and without assignments in his brief, or points of law partaking of the nature of assignments, the appellate court has no jurisdiction to consider the propositions of erT ror. For a third reason, the new proposition in the supplemental brief does not constitute reversible error. In the Russell Case Judge Cureton said: “Moreover, the rule in this state is that the amount of exemplary damages allowed must be reasonably proportioned to the actual damages found.” Of course) this proposition of law is to protect the defendant against an excessive verdict for exemplary damages. In their original brief api pellants advanced the two following assignments of error on the issue of excessive damages: “84. Because the verdict of twelve thousand dollars ($12,000.00) damages is without support in the evidence.” “86. Because the verdict of twelve thousand dollars ($12,000.00) damages is excessive.” Though appellant brought forward 44 propositions, no point was made that the verdict *183 was excessive, nor was the point made by independent argument supported by its statement from the record; therefore, it follows that assignments 84 and 86 were waived. If the verdict was not excessive, and appellant has not saved that point, the Russell Case has no application to this case. But appellant says that appellees, by signing the following agreement, formally waived rule 37: “Now comes the appellant, Pure Oil Company, by and through its attorneys, and appellees, Mrs. Ersal Pope, et al, by and through their attorneys, and mutually agree to waive all statutory and other require^ ments relating to the filing of briefs by either party in the Court of Civil Appeals.” This agreement was filed after appellant had prepared and furnished counsel for ap-pellees with copies of its original brief filed in this case. Appellees insist, and we agree with the contention, that the supplemental brief was not within the contemplation of the parties when this waiver was signed. However, if the supplemental brief is properly before us, the assignment of error advanced therein does not constitute reversible error for the simple reason that appellant is estopped to assert it. In this connection it is proper to say that we are in error in our statement in the original opinion that appellant's exceptions to appellees’ allegations of actual damages were sustained by the trial court. These exceptions were overruled by the trial court. After that ruling appellees filed an amended petition wherein every element of actual damages was pleaded by them in detail, but the amount of actual damages suffered by appellees was not stated in the petition. It is clear from the record that counsel for appellees filed this amended petition to obviate error by the order of the court in overruling appellant’s special exceptions. This point was put in the case by appellant, not by appellees. That appellant acquiesced in this change in the pleadings and accepted it as the correct theory of the law upon which the case should be tried appears from the fact that in preparing its original •brief it omitted the very assignment of error which constitutes the basis of the supplemental brief. We cannot grant appellant’s motion to file its supplemental brief because the omission of the new assignment from the original brief was not the result of fraud, accident, or mistake, nor even of carelessness on the part of appellant’s counsel, but was due only to the fact that it did not believe this assignment presented a correct rule of law. Having tried the case on one theory of the law, the rule is universal that appellant cannot prosecute an appeal upon an entirely different theory of the law directly contra to the theory upon which the case was tried in the lower court. Of the theory of estoppel discussed in the original opinion, appellant in its motion for rehearing says: “While, of course, if the trial court had sustained the exceptions of the appellant, and had held that it was improper to plead actual damages in such instance, then, of course, the appellant would be es-topped to set up the failure of the Court to submit actual damages to the- jury. The record shows, however, that this is not correct.” In principle this is a recognition of the principle of estoppel contended for by appel-lees. Appellant having induced appellees to change their petition by their exceptions, it stands in the same position on the issue of estoppel as if the trial could; had sustained its exception. That is to say, the failure of appellees to plead the amount of their actual damages was directly occasioned by the act of appellant. Though citing Marshbum v. Stewart as a principal authority in its motion for rehearing, appellant frankly concedes that it is not the law. Thus appellant, in its reply to appellees’ reply to motion for rehearing, says: “Justice Walker, in Marshburn v. Stewart, incorrectly stated the law applicable to situations where the appellant has obtained no permission to file an amended brief, and where the appellees have objected to the same, but have failed to file their motion to strike, namely, that the Court is required to consider it.” If appellant is correct in its proposition that the court is not required to consider a supplemental brief where no motion to strike has been filed, then that concession should control this ease. We know of no principle of equity requiring an appellate court to permit appellant to file a supplemental brief advancing a proposition knowingly and purposely omitted from the original brief. We cannot agree with the contention that the assignment brought forward in the supplemental brief constitutes fundamental error. The error complained of by this assignment is procedural in its nature; the proposition involved being for the benefit of the defendant, as stated above, and was subject to waiver. Under the facts stated herein, it was waived. *184 By its fourth ground for rehearing appellant assigns error against our failure to sustain assignments of error Nos. 84 and 86, copied above, on the issue that the verdict was excessive. In the first place these assignments are too general to support error. In the second place, appellant advanced neither propositions nor argument nor statement in its original brief in their support. Therefore, they were properly overruled. We have carefully considered all other points made by appellant in its motion for rehearing, and they are overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828380. Public record. Not legal advice.