Opinion
No. 5635.
April 19, 1916. Rehearing Denied June 7, 1916.
Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
Action by Walter Downs against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.
E. B. Perkins, of Dallas, and Scott Ross, of Waco, for appellant. Hamilton Murphree, of Waco, and J. A. Kibler, of Houston, for appellee.
This is a damage suit, the trial of which resulted in a verdict and judgment for the plaintiff, and the defendant has appealed. Only two assignments of error are presented by appellant, one complaining of a certain paragraph of the court's charge to the jury, and the other complaining of a refusal to give a requested instruction. Appellee objects to a consideration of either of the assignments referred to, because the record does not show that the objections to the charge were presented to the trial judge before he read it to the jury, and does not show that notice to opposite counsel of such objections was given, nor that appellant excepted to the action of the court in not sustaining the objections urged; and a similar objection is made in reference to the special charge that was requested and refused.
These objections are predicated upon the act of 1913 (Acts 33d Leg. c. 138) amending the Revised Statutes in reference to objections to charges given and the action of the court in refusing requested instructions, and to bills of exception. In the case at bar there is no formal bill of exception, and the record merely shows that on the day the case was called appellant presented to the trial court certain written objections to the charge given to the jury, and requested the court to give a special charge. The judge made this indorsement, and no other, upon each of those documents: "Refused. Rich'd I. Munroe, Judge." In Railway Co. v. Bartek, 177 S.W. 145, and Railway Co. v. Bland, 161 S.W. 504, this court considered and construed the act of 1913, and held that similar proceedings to those contained in the record in this case did not comply with that act. We are satisfied with the correctness of our rulings in those cases; and, for the reasons therein stated, we hold that appellant has waived its objections to the court's charge and to the refusal of the requested instruction. This being the case, and without expressing any opinion upon the questions sought to be presented, we affirm the judgment.
Affirmed.