
    ISBELL et al. v. LENNOX et al.
    (No. 355.)
    Supreme Court of Texas.
    June 4, 1927.
    1. Appeal and error <&wkey;231 (9)— Objection to following portion of charge, setting out a paragraph thereof, held not compliance with statute (Rev. St. 1925, art. 2185).
    An exception and objection to the following portions of a charge, setting out a paragraph thereof, and to another paragraph in the charge in the same way and the same language was not a compliance with Rev. St. 1911, art. 1971 (Rev. St. 1925, art. 2185), and amounted to no objection.
    2. Appeal and error @=»23l(9) — Objection to charge which fails to point out error is not an objection entitled to consideration (Rev. St. 1925, art. 2185).
    Objection to a charge, under Rev. St. 1911, art. 1971 (Rev. St. 1925, art. 2185), which fails to point out the error complained of, is not an objection which is entitled to consideration.
    3. Trial <&wkey;243 — Party cannot complain of refusal of special charges inconsistent with main charge not objected to.
    Appellant cannot complain of the refusal of special charges which conflicted with and contradicted the main charge, which was not objected to.
    4. Appeal and error <&wkey;928(I) — Court’s charge is presumed to be correct where no errors are pointed out.
    Where no errors are pointed out in the court’s charge, the presumption is that it is correct.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by G. W. Isbell and others against H. H. Lennox and others. Judgment for defendants was affirmed by the Court of Civil Appeals (224 S. W. 524), and plaintiffs bring error.
    Judgments of the district court and the Court of Civil Appeals affirmed.
    J. Q. Mahaffey and Keeney & Dalby, all of Texarkana, and T. T. Thompson, of Clarks-ville, for plaintiffs in error.
    A. P. Parks, of Paris, and Lennox & Len-nox, of Clarksville, for defendants in error.
   PIERSON, J.

The nature of the case is sufficiently disclosed by tlie following brief statement of the ease by the honorable Court of Civil Appeals:

“This was a suit by appellants against appel-lees for damages they, claimed they had suffered as a result, they charged, of the act of appellees in so diverting water from its natural course on their land as to cause same to flow upon and injure appellants’ land. In their petition appellants alleged that the diversion was of surface water and of the waters of Boggy creek, a tributary of Lankford creek, by means of a dam and levee appellees constructed on their land to a point thereon near land adjoining it on the south which belonged to appellants. In their answer appellees admitted they constructed a dam' across a prong of Boggy creek on their land, but denied that the effect of same and of the ditch they dug and levee they constructed was to divert the waters of said creek and water falling on their land so as to cause same to overflow appellants’ land different from the way it* had always overflowed same. Appellees alleged that appellants’ land was the natural way for water falling on their (appellees’) land and the overflow waters of Lankford, Boggy, and Pickett creeks to escape.
“At the trial appellants adduced testimony tending to support the allegations in their petition, and appellees adduced testimony tending to support the allegations in their answer.
“The appeal is from a judgment in appel-lees’ favor in conformity to the verdict of a jury.”

The opinion of the Court of Civil Appeals may he found in 224 S. W. 524.

The Court of Civil Appeals refused to consider the assignments of error of the plaintiffs in error, holding, first, that plaintiffs in error had not complied with article 1971, R. S.1911, being article 2185, R. S. 1925, in their objection to the court’s main charge, and that same stands as if not objected to at all, and any errors therein could not be considered on appeal; second, that:

“A party who has not objected to the main charge to the jury has no right to complain of the refusal of the court to give a requested special charge inconsistent with or contradictory of the main charge.”

The holding of the Court of Civil Appeals on the first point is in line, we think, with the holdings of all the decisions; the holding-on the second point is in line with City of Fort Worth v. Ashley (Tex. Civ. App.) 197 S. W. 307, Fort Worth & D. C. Ry. Co. v. Miller (Tex. Civ. App.) 201 S. W. 1049, Graves v. Haynes (Tex. Civ. App.) 214 S. W. 665, and Hendrick v. Blount-Decker Lumber Co. et al. (Tex. Civ. App.) 200 S. W. 171; but in conflict with Rabinowitz v. Smith Co. (Tex. Civ. App.) 190 S. W. 197, C. & S. Ry. Co. v. Rowe (Tex. Civ. App.) 224 S. W. 936, and Barnett v. Perrine (Tex. Civ. App.) 250 S. W. 1111.

The plaintiffs in error objected to the court’s charge in the following language:

“The plaintiffs excepts and objects to the court giving, in charge to the jury, the following portions of the charge, to wit.”

Then followed a paragraph of the court’s charge. Another paragraph of the court’s charge was objected to in the same way and in the same language.

The Court of Civil Appeals correctly held that the so-called objection was not a compliance with the requirements of article' 1971, R. S. 1911 (article 2185, it. S. 1925), and amounted to no objection at all (224 S. W. 524). Said article, in part, reads as follows:

“The charge shall be in writing, signed by the judge, * * * after the evidence has been concluded and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine and present objections thereto, which objections 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.”

This statute was designed to correct a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.

The objection must point out to the court the error complained of. If it fails to do that, it does not meet the purpose and requirement of the statute and is no objection at all.

The necessary and only construction that can be given to the language of the article is that it requires of a party more than a mere statement that he objects; it must point out the error. Any other construction would destroy its effect and malre it meaningless. The gateway would he thrown open for the creeping in of the’ evils of the old practice when no objections were required, and the trial judge at his peril and under the pressure of his docket was required to prepare and give his charge without the benefit of the assistance of counsel in the case, who were especially prepared on the law of the case, and who were permitted to make use of any flaw or error that might thereafter suggest itself if the verdict went against him.

In the case of Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 134, 187 S. W. 187, this court, through Chief Justice Phillips, said :

“The three articles, that is, amended articles 1970 and 1971 and unamended article 1972, in our opinion simply mean that in order to obtain a review of the general charge of the court on the appeal because of any error therein, an objection to the charge in the particular complained of must be presented to the trial judge before the charge is read to the jury.” (Italics ours.)

Again, in Walker v. Haley, 110 Tex. 50, 214 S. W. 295, in discussing article 1971, R. S. 1911, Chief Justice Phillips said:

“It is the intention of a law which is the law; and once truly ascertained, it should prevail, even against the strict letter of the law.
“The purpose of the act is plain. It is to provide the court, in advance, with the objections to which the charge is deemed subject, so as to afford opportunity for its correction in the particulars urged. It is, in a word, to secure, as far as possible, the preparation and submission of a correct charge to the jury.”

The charge of the court in this case stood without objection, and lack of objection, if not tantamount to an approval of the rules of law it contained as applicable to the facts of the case, was at least an acquiescence in their correctness and a consent that they be given to the jury for its guidance.

Plaintiffs in error insist, regardless of objection to the court’s main charge, that on appeal they are entitled to have their two special charges considered, and the cause reversed and remanded for another trial on account of the refusal of the trial court to give them, if they present the correct rule of law applicable to the facts of the ease.

The special charges offered conflicted with and contradicted the main charge, and gave a rule of liability for the jury to follow different from that contained and given in the court’s main charge. If the court had given them, or either of them, it would have necessitated a new trial or a reversal of the judgment on appeal. Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 127, 187 S. W. 184. The trial court properly refused them.

Where no errors are pointed out in the court’s charge, the presumption is that it is correct. The inconsistency of a special charge with* the court’s charge might or might not be observed or become readily apparent, and to_ give a special charge which contradicts the' court’s charge would cause a mistrial of the case or a reversal of the judgment. To reverse and remand a cause because the court refused a special charge which is inconsistent with the court’s charge; which is not objected to, is to give the special charge the status or effect of an objection to the court’s charge. Either course would relieve the party of his duty of making objection to the court’s charge and of pointing out any errors he conceived to be therein. The statute would become a dead letter, and its wholesome purpose dissipated.

The special charges were in conflict with the court’s charge, and under the holdings herein the Court of Civil Appeal’s properly declined to consider them.

The judgments of the district, court and the Court of Civil Appeals are affirmed. 
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