Abbott v. Andrews

• Citation: 29 S.W.2d 885
• Decision Date: 11 June 1930
• Docket Number: No. 3428.,3428.
• Parties: ABBOTT et al. v. ANDREWS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

29 S.W.2d 885

ABBOTT et al. v. ANDREWS et al.^*

No. 3428.

Court of Civil Appeals of Texas. Amarillo.

June 11, 1930.

Rehearing Denied July 2, 1930.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by Poney Andrews against C. C. Abbott and Herbert Cockrell and others. From an adverse judgment, the named defendants appeal.

Affirmed.

Bean & Klett, of Lubbock, for appellants.

Wilson, Randal & Kilpatrick and Lockhart, Garrard & Brown, all of Lubbock, for appellees.

RANDOLPH, J.

This is the second appeal in this case. For former opinion, see (Tex. Civ. App.) 5 S.W.(2d) 1010. The Supreme Court granted a writ of error from that decision and reversed the judgment of the district court and of this court and remanded the case to the district court for a new trial. 15 S.W.(2d) 218.

The case has been tried again, and, on the verdict of the jury upon issues submitted to them, the trial court rendered a judgment in favor of the plaintiff Andrews against the defendants C. C. Abbott and Herbert Cockrell, jointly and severally, for the sum of $4,000, with interest at the rate of 6 per cent. per annum from date thereof and that the plaintiff Poney Andrews take nothing as against defendant J. M. Radford Grocery Company on his action, and that the defendants Abbott and Cockrell take nothing on their cross-action against defendant J. M. Radford Grocery Company and in favor of the grocery company for the costs incurred in the suit. From this judgment the defendants Abbott and Cockrell have appealed.

The statement of the case as to the substantial facts made on the former appeal to this court renders a detailed statement unnecessary, but reference is made to our former opinion except as to such special matters as will be necessary to be stated in the decision of the questions we will now discuss.

This appeal has been submitted to us on ten propositions of alleged error, and we will discuss such propositions as are controlled by relation to other propositions and thereby attempt to dispose of the appeal upon material issues.

Complaint is made of the attorney for the plaintiff informing the jury how to frame their answers in order to fix liability on the defendants Abbott and Cockrell. In his closing argument, one of the attorneys for the plaintiff said to the jury: "Now, let's come to the special issues right quick. You are instructed in answering the issues in the main charge that the Court has asked you if certain things which constitute negligence, if that was negligence, was that negligence the proximate cause of the injury. If you answer those questions that such acts and such negligence was a proximate cause of the injury, Radford Grocery Co. and the Bus Company, together, will be liable to Poney Andrews." The defendants objected to this statement of the attorney telling the jury the effect of their answers to the special issues, and the court then and there instructed the jury not to consider for any purposes whatever in its deliberation nor to refer to or discuss, if they could possibly forget it, the statement of Mr. Garrard with reference to what the effect of their answers might be. All of the foregoing occurred in open court while said attorney was making a closing argument. The trial court appended to the bill of exceptions the qualification: "That as soon as objection was made and Mr. Garrard saw what had been done, he asked the jury to forget what he had said, in addition to the Court's instruction to the jury not to consider the same."

In support of their exception, the defendants Abbott and Cockrell cite the case of Behringer v. South Plains Coaches, opinion by this court, 4 S.W.(2d) 1003, and the opinion of the Commission of Appeals, 13 S.W.(2d) 334. We do not think that the decision in that case is applicable to the question here under discussion. If we concede that the argument in this case was just as objectionable as that complained of in the Behringer Case, the disposition of the objection in the trial court in that case was not calculated to cure or obviate the error. In that case the court overruled the objection and permitted the argument to remain in the minds of the jury, thus giving the court's approval to the argument. In this case the trial court sustained the objection and instructed the jury not to consider same. Not only was this done, but the attorney himself practically withdrew the remarks he had made and asked the jury to forget it.

Where an attorney in the heat of a trial advances arguments that are objectionable, we cannot agree that the litigant should be penalized by having his case reversed unless it reasonably appears that some injury was occasioned a substantial right of the defendants. Especially is this true where every effort has been made by the court and the attorney who was guilty of the erroneous argument to withdraw it from the minds and consideration of the jury. Schnick v. Morris (Tex. Civ. App.) 24 S. W. (2d) 493; Oilmen's Reciprocal Ass'n v. Hayes (Tex. Civ. App.) 295 S. W. 675; International & G. N. Railway v. Irvine, 64 Tex. 529; Texas Power & Light Co. v. Central Texas Battery Co. (Tex. Civ. App.) 256 S. W. 644.

We desire to call attention to the fact that the jury did not in any way, as shown by the record, respond to the argument of counsel for plaintiff which is complained of. The statement of the attorney was: "If you answer those questions that such acts and such negligence was the proximate cause of the injury, Radford Grocery Company and the Bus Company together will be liable to Poney Andrews." The jury's finding eliminated the Radford Grocery Company, and hence was not responsive to the argument.

The appellants urge that the trial court committed error in overruling their motion for a new trial upon the ground that the jury, in considering their verdict and before the answers to the special issues submitted to them were written out, discussed the question as to whether or not the defendants Abbott and Cockrell carried insurance.

The defendants Abbott and Cockrell, in their motion for rehearing, set up the fact that the jury were influenced to return a verdict in favor of the plaintiffs as against the defendants Cockrell and Abbott by reason of their discussing and taking into consideration and assuming that the defendants Cockrell and Abbott, one or both, carried public liability insurance. Evidence was heard on this charge, and, in our opinion, the evidence does not sustain them in the matter of the charge. The evidence does not show that the jury ever arrived at any conclusion that the defendants carried such insurance, and the jury is not shown to have assumed any such thing. Two of the jurors only were introduced; the defendant's attorney claiming that the weather was so bad that they could not secure the attendance of the other ten of the jurors. During the taking of the evidence, when the defendants' attorney made the statement about the bad weather and asked to put his reasons in the bill of exceptions, the trial court limited the bill in effect to the one statement not being correct, and said: "This was not a bad snow storm, it did not cover the ground, it was just a sprinkle and there is no reason why a man should not have traveled from Dan to Beersheba." There was no attempt to postpone or continue the hearing to secure the attendance of the other jurors, and therefore the defendants Abbott and Cockrell must be charged with the failure to secure their attendance, and the question is presented upon the testimony of the two jurors.

We give the following statement of the foreman of the jury as to what occurred in the jury room:

"My name is W. C. Grimes. I was the foreman of the jury in the case of Poney Andrews against Radford Grocery Co. A remark was made by some of the boys, while in the jury room and in the presence of the jurors after they had gone to the jury room to consider their verdict, in regard to whether or not the bus line carried insurance and Mr. Rush called my attention to it and I told the boys not to consider that at all, or talk about it in the jury room in discussing that case. R. G. Rush called my attention to it just as they were beginning it and I told them not to consider that at all. I cannot say how many of the jurors mentioned that matter in the jury room, might have been two or three that started the subject and R. G. Rush called my attention to it and I told them not to consider that at all. The best I remember there wasn't but very little said, some one made the remark `did they carry insurance for damages against cars' and R. G. Rush called my attention to it and I told the boys not to consider that at all and not to talk about it and that is as far as it went. That is the reason I want R. G. Rush, he can testify that he called my attention to it and I told them not to consider it at all or talk about it. I don't believe Mr. Rush said a thing, in the jury room, about whether or not line cars did or did not carry insurance. He called my attention to the fact that it was being discussed. We were talking about the case, different questions, fixing to ballot on some and they elected me foreman and I was taking the situation in and he called my attention to it and he said it should not be discussed and I called the attention to the boys and they dropped it and there was nothing more said. I thought I knew it should not be discussed, but it is not every juror that is a lawyer. There is questions that will come up and after he called my attention to it I knew it should not be discussed. He brought it to my attention for me to rule on it and I told them not to discuss...