The opinion
On Rehearing.
We have examined appellant’s motion for rehearing, and are satisfied with the conclusions reached in the original opinion, but desire to make a few additional remarks on what the appellant calls its ninth proposition, wherein it is urged that the court committed fundamental error in the manner in which he submitted question No. 1, in that the same called not only for a finding of a reasonable attorney’s fee for services rendered by the plaintiff’s attorney in the institution and prosecution of the instant suit, but permitted the jury to include therein an element of attorney’s fee for services rendered before the Industrial Accident Board in the presentation of the claim.
In approaching the question before us,' it •must be recognized, and it is so recognized by us, that it is a fundamental consideration that any finding, to be effective, must be supported by both the pleadings and the evidence. Judgments of the court shall conform to the pleadings, the nature of the case proved, and the verdict. Article 2211, R. S., as amended by Acts 1931, c. 77, § 1 (Vernon’s Ann. Oiv. St. art. 2211). The sufficiency of the evidence is not here challenged, and this is not a case or question of defective pleadings or lack of pleadings. The plaintiff’s suit is authorized by article 8307, §§ 5 and 5a, of the Revised Civil Statutes of 1925. There are three elements of recovery in it: (1) It seeks to mature a claim alleged to have been awarded by the Industrial Accident Board; (2) 12 per cent, penalty as damages; and (3) reasonable attorney’s fee for the prosecution and collection of the award. Texas Employers’ Insurance Ass’n v. Nunamaker (Tex. Civ. App.) 278 S. W. 889 .
Hence this case is not to be confused with that long line of cases wherein the appellate courts have set aside, on the basis of fundamental error, judgments that have no sup *898 port in tlie pleadings or judgments resting on verdicts without support in the pleadings. Such holdings are correct; many of them are by this court, but have no application to the record before us because this is a case with sufficient and unchallenged pleadings on the essential and authorized elements of recovery.
If there be any vice in this case or in the judgment, it did not get there by the pleading route. The vice, if any, crept in by' and through the charge to which the appellant urged no objection in the trial court, although both the statute (article 2185) and the trial court afforded it an opportunity to do so and thus facilitate an accurate trial. In other words, the vice here complained of was aptly described by this court in Largent v. Etheridge, 13 S.W.(2d) 974, 979 , where a similar attack on the judgment was made by the appellant, and this court disposed of the same in this language: “The gravamen of appellant’s complaint seems to be that the court, by its instructions to the jury, directed them to consider matters beyond the scope of ap-pellee’s pleading in arriving at their verdict If the instructions had such effect and should be conceded to be error, the provisions of article 2185 supra, pronounce as the consequence of not having made timely objection to the giving of the instruction * * * and urging an assignment here to that effect, that such error is waived.”
That conclusion is not only apt and correct, but applicable to the point under consideration.
If it be conceded that an incorrect element entered into the verdict and judgment in the manner indicated, and if it be further conceded that the verdict and judgment should embrace nothing by way of compensation for the attorney’s services before the board, which we recognize, nevertheless, how was such a result attained? Or to what is it attributable? Unquestionably to the fact that no objection to the charge was interposed by the appellant,, who is presumed to have accepted same as correct and sanctioned its submission to the jury. Not only this, but there is not to be found in this record an assignment of error to the court’s giving the issue in the form stated. Neither was it mentioned in the motion for a new trial. At either juncture the learned trial court would doubtless have corrected the error and thus economized in time and expense of litigation. In this situation, the observation of Judge Speer in Law of Special Issues, p. 196, § 147, is pertinent. It is there said: “Most any error committed during the ‘progress of the trial is capable of being cured by appropriate instructions from the court. If those supposed errors have occurred prior to the reading of the charge, the matter should be dealt with at that time. * * * ”
This is evidently based upon the provisions of article 2185, R. S. 1925, which reads: “The charge shall be in writing, signed by the judge, filed with the cleric, and shall be a part of the record of the cause. It shall he prepared after the evidence has teen concluded and shall he submitted to the respective parties or their attorneys for inspection, and a reasonable time given them m which to examine and present objections thereto, which objeetions shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.” (Italics ours.) As held by the authorities, this is a highly remedial statute. Western Ind. Co. v. Toennis (Tex. Civ. App.) 250 S. W. 1098 .
This statute has in fact had a salutary and beneficial effect. According to its intent and purpose, it promotes accuracy in trial, and it nowhere adds confusion in matters of judicial procedure. Its spirit and purpose is well expressed by Judge Speer in his commendable work on Law of Special Issues, in this language (page 391, § 272): “The statute imposes upon the judge the duty of preparing the charge, — and this includes the special issue, — and a corresponding duty upon the respective parties or their attorneys tot inspect the same and to present objeetions thereto. The end sought is a most desirable one, and the statute was born of the necessity evidenced by the prior common practice of lodging objeetions to the court’s charge at any time before taking out the record, thus, as it were, laying a trap for the judge and enabling an appellant to reverse the judgment upon an objection to the charge for a vice that could and would perhaps have been readily corrected, if called to the attention of the trial judge before it was too late. The responsibility for the accuracy of the charge when it finally is read to the jury is now where it rightfully belongs; that is to say, with the judge preparing it, but only after! he has been aided by such objections as the parties or their attorneys have seen fit to make thereto. The real purpose of the requirement no doubt is to secure constructive criticism.”
The manner in which point 9 is presented to this court discloses that the trial court was not aided by the appellant in a correct submission of the issue to the jury.
Soon after article 2185 was enacted, its effect and purpose as stated by the author were substantially so declared by our Supreme Court in Gulf, T. & W. Railway v. Dickey, 108 Tex. 126 , 187 S. W. 184 . In Denman v. Pyle, 210 S. W. 335, 336 , the Court of Civil Appeals at Austin, discussing the statute, used this language: “The contention that the action of the court complained of constitutes fundamental error does not aid appellants’ cause. A failure to comply with the statute referred to results in a waiver of any error that can *899 be waived, though such error may be fundamental. We see no reason why a litigant may not waive any error in a charge or instruction given to the jury, regardless of the importance or result of the error. The statute is as comprehensive as it could well be made; and, as it contains no exceptions, we think it must be construed to include fundamental as well as other kinds of error in a charge. The Legislature had the power to so frame the law, and the fact that one of the results is to deprive appellate courts of the discretion they formerly had to reverse cases on account of fundamental error in the trial court’s charge, though not complained of on appeal, is no reason why the statute should not be enforced. The Legislature, having the power to enact the law in the form it has been enacted, and there being ño ambiguity about its meaning, its wisdom should not be a matter of concern to the courts.”
In Alderete v. Cabello, 278 S. W. 930, 952 , the El Paso Court of Civil Appeals, through Judge Higgins, in considering an objection to the court’s charge, urged for the first time on appeal, said: “As to all objections to the court’s charge raised for the first time in this court and submitted as fundamental error, it is sufficient to say that, under the present statute, all objections to a charge must be called to the attention of the court below. All objections not so made and presented must be considered as waived. * * * The fact that the error may be fundamental is immaterial. Gestean v. Bishop (Tex. Civ. App.) 180 S. W. 302 . Errors in court charges are usually of that nature, but the statute does not except from its operation errors in the charge which are fundamental. To so hold would ingraft an exception which the Legislature did not see fit to make when the¡ statute was enacted.”
In Childress v. Pyron, 285 S. W. 1100, 1101 , the San Antonio court, in commenting upon article 2185, said: “It will not do to say that the statute does not apply where the error in the charge is fundamental, as claimed here. This statute applies to every erroneous charge, real or imaginary.” Citing several authorities.
The exact point here under consideration was disposed of by the Dallas Court of Civil Appeals, in Ball v. Henderson, 228 S. W. 361 , 362: “ * * * The ease is submitted in this court on three assignments presenting what is claimed to be fundamental errors. * * * The first and second asserts, respectively, that the court erred in submitting special issue No. 1, and the issue of exemplary damages, because there is no pleadings to support the issue and judgment. [Italics ours.] If it should be conceded that either, or both, of these assignments presents fundamental error, the matters complained of cannot be considered on this appeal. It is admitted by appellant that no objection whatever was urged to the court’s charge in submitting either of the issues, and, in the absence of objection made and presented to the court before the charge was read to the jury, such objections as should have then been made must now be considered as having been waived” — citing authorities.
Considering a like error, the Court of Civil Appeals of Texarkana, through Judge Hodges, in the ease of Hendrick v. Blount-Decker Lumber Co., 200 S. W. 171, 173 , disposed of the same in the light of article 2185, asi follows: “To give full effect to the terms of the later law even an error apparent upon the face of the record, when resulting from an improper charge, is waived, and the right of revision on appeal lost, when no objections are presented in the court below.”
A like holding was made by that court in Parsons v. Hubbard, 226 S. W. 441 , in which a writ of error was denied by the Supreme Court.
■ In Texas Electric R. Co. v. Crump, 212 S. W. 827, 830 , the Austin Court of Civil Appeals recognized that such a point as that here under' consideration was merely an attack on the charge, and disposed of it in this language: “This assignment is really an attack upon the charge of the court. Our statute provides, in effect, that a charge of the court will be regarded as approved, and any objections thereto waived, unless prior to it being read to the jury objection is made, pointing out wherein the charge is erroneous. The manifest purpose of this statutory provision is to enable the trial court to correct its errors before the law of the case is given in charge to the jury. As stated,' no such objection was made to the charge, and it was. too late to raise the point in a motion for new trial.”
Further; we are of .opinion that there are other and additional reasons why the issue complained of did'not inject a reversible error into the case. The situation, from appellant’s viewpoint, is analogous to that of a defendant against which judgment has been recovered for negligent death, etc. In submitting the proper elements of damage in such a case, it is held to be reversible error, when objected to, for the trial court to fail to instruct the jury, in substance, at least, that, in arriving at their verdict, they should exclude from their consideration damages resulting from physical and mental suffering, grief and sorrow, or the loss of society or companionship on account of death, etc. Texas & P. Ry. Co. v. Phillips (Tex. Civ. App.) 56 S.W.(2d) 210 ; Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235 , 115 S. W. 260 ; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033 ; International & G. N. Ry. Co. v. McVey, 99 Tex. 28 , 87 S. W. 328 .
In such a case it would not be contended that such an omission upon the part of the *900 trial court would be reversible error when raised for tbe first time in tbe appellate court. It is elementary that sueb an objection would have to be urged to tbe charge under article 2185, before tbe error would be available on appeal. This is not only analogous to tbe situation before us, but is perhaps a deadly parallel, compelling tbe conclusions which we entertain relative to tbe disposition to be made of point 9.
We have thus extended these remarks to make clear our view that tbe appellant’s point 9 simply involves an attack upon tbe charge when it made no such attack in thé trial court, and to show that tbe question is not one of pleading at all. We are conscious of tbe fact that a, bard ease is calculated to make bard law. History so shows, but it does not always repeat. To be sure tbe verdict and tbe judgment possibly embrace an unwarranted element of recovery, and it counts for nothing that it is doubtless insignificant in amount compared with tbe sum necessarily found by tbe jury to justly belong to tbe plaintiff. Tbe primary consideration is a correct application of a legal' principle or statutory rule. Nothing else is desirable. If tbe proposition under consideration is merely an attack on tbe charge, then we think that tbe wholesome effect of article - 2185 should not be whittled away and emasculated by a new-found exception, even though an issue too generous to tbe plaintiff crept into the charge. Tbe Legislature did not create such exception.
Tbe motion for rehearing is overruled.’
FUNDERBURK, J„ dissenting, see 57 S.W. (2d) 1120 ..