[emphasis supplied] State v. Brown, 109 N.C. 802, 13 S.E. 940, 941 (1891) (citing O.B. Farrelly Co. v. City of Cincinnati, 2 Disn. 516); see also Gulf Production Co. v. Gibson, 234 S.W. 906, 909 (Tex.Civ.App. 1921) ("But in order for one to have the right of deviation . . . it must be shown that no other passway was convenient or accessible."). State v. Brown, 109 N.C. 802, 13 S.E. 940, 941 (1891) (citing O.B. Farrelly Co. v. City of Cincinnati, 2 Disn. 516); see also Gulf Production Co. v. Gibson, 234 S.W. 906, 909 (Tex.Civ.App. 1921) ("But in order for one to have the right of deviation . . . it must be shown that no other passway was convenient or accessible.").
It should require no citation of authorities to support the proposition that it is never error for the court to refuse to submit a requested special issue which is so stated that if the court had given it in the first place his action in doing so would have been error. But see Freeman v. Galveston, H. S. A. Ry. Co. (Tex.Com.App.) 285 S.W. 607; Gulf, C. S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Gulf, C. S. F. Ry. Co. v. Minter, 42 Tex. Civ. App. 235, 93 S.W. 516, and authorities cited; Landrum v. Thomas (Tex.Civ.App.) 149 S.W. 813; Houston, E. W. T. Ry. Co. v. Lacy (Tex.Civ.App.) 153 S.W. 414; Missouri, K. T. Ry. Co. v. Dunn (Tex.Civ.App.) 157 S.W. 434; Gulf Production Co. v. Gibson (Tex.Civ.App.) 234 S.W. 906. So far as we know, in no well-considered case has it ever been held that it was error to do so.
There is a difference between an assignment of error questioning the refusal of the court to give an incorrect charge and one complaining of his failure to give a correct one. Gulf Production Co. v. Gibson (Tex.Civ.App.) 234 S.W. 906. The majority is therefore of the opinion that appellant's eighth proposition fails to present reversible error.
There is a difference between an error assigned to the refusal of the court to give an incorrect charge and one which questions his failure to give a correct one. Olds Motor Works v. Churchill (Tex.Civ.App.) 175 S.W. 785; Gulf Production Co. v. Gibson (Tex.Civ.App.) 234 S.W. 906. The appellant has presented no assignment of error here except to the failure of the court to give its requested charge.