Motion No. 12,581.
Decided July 22, 1936. Rehearing overruled October 7, 1936.
Certified Question — Practice in Supreme Court.
The Supreme Court will not require the certification of a question of law which it has already decided unless the decision in which the question arises is contrary to that of the Supreme Court, even though it be admitted that there is a conflict between the decisions of the Courts of Civil Appeals.
Original proceeding in mandamus by Jack Harris against the Honorable W. P. Leslie, Chief Justice of the Court of Civil Appeals for the Eleventh Supreme Judicial District, and his associates, seeking to compel them to certify to the Supreme Court a question of law in the case of Harris v. Thornton Department Stores ( 94 S.W.2d 849), which is pending in that court, on the allegation that their decision is in conflict with that of other courts.
Motion for leave to file is overruled.
Kirby, King Overshiner, of Abilene, for relator.
Relator seeks to compel by mandamus the Honorable Court of Civil Appeals, 11th Supreme Judicial District, to certify to this Court the following question:
"Where the case was submitted to the jury on special issues and the Appellant, plaintiff in the Court below, timely and properly objected in writing to the Court's charge because of the Court's failure to submit to the jury a material issue, necessary to his recovery of damages and on which there was a conflict of evidence, which objections were overruled by the Trial Court, to which action and ruling of the Court plaintiff excepted; but did not formulate an issue presenting the question and request the Court to submit such issue to the jury; was his objection and exception made as aforesaid sufficient to entitle him to a review by the Appellate Court of the alleged error of the Trial Court in failing to submit said issue?"
The case before the Court of Civil Appeals out of which the question arose is Harris v. Thornton Department Store, 94 S.W.2d 849. The opinion of the Court of Civil Appeals freely admits the conflict of decisions on the question, but follows the opinion of this Court in Gulf, C. S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561; 32 A. L. R., 1183. This Court, as recently stated in Aetna Life Ins. Co. v. Gallagher, 127 Tex. 553, 94 S.W.2d 410, will not require the certification of a question which it has already decided, unless the decision of the Court of Civil Appeals on that decision is contrary to the Supreme Court's decision thereon. The decision of the Court of Civil Appeals being in harmony with the decision of this Court in the Conley case, supra, the motion for leave to file will be denied.
Opinion delivered July 22, 1936.