Aguilera v. Reynolds Well Service

• Decision Date: 01 November 1950
• Docket Number: No. 12188,12188
• Citation: 234 S.W.2d 282
• Parties: AGUILERA et al. v. REYNOLDS WELL SERVICE, Inc.
• Court: Texas Court of Appeals

Page 282

234 S.W.2d 282

AGUILERA et al. v. REYNOLDS WELL SERVICE, Inc.

No. 12188.

Court of Civil Appeals of Texas, San Antonio.

Nov. 1, 1950.

Rehearing Denied Nov. 29, 1950.

Charles J. Lieck, San Antonio, J. Earl Barnhouse, Alice, for appellants.

Kemp, Lewright, Dyer & Sorrell, and Cecil D. Redford, all of Corpus Christi, Lloyd & Lloyd, Alice, for appellee.

NORVELL, Justice.

The trial judge refused to permit appellants upon cross-examination to develop the fact that a witness for appellee, who had given damaging testimony to appellants' case, was the agent of Traders and General Insurance Company and had in that capacity written public liability insurance with said company covering the truck of appellee which was involved in the collision giving rise to this lawsuit.

This action grew out of a collision between an automobile owned by W. C. Roberts and being driven by Willie Aguilera, Sr., and a truck owned by appellee, Reynolds Well sErvice, Inc., and being operated by C. R. Turner, an employee of the company. The accident occurred on the night of March 7, 1949, on the Benavides-Freer Highway in Duval County, Texas. The only eye-witnesses thereto were Roberts, Willie Aguilera, Sr., his small son, Willie Aguilera, Jr., about ten years of age who did not testify, and the driver of the truck, C. R. Turner. The testimony as to the position of the vehicles immediately prior to the collision was sharply conflicting. The situation is aptly described in appellants' brief as being 'a plain dispute between the operators of the two vehicles as to who was on the wrong side of the road with a portion or part of their vehicle.' Upon this issue, the jury's findings were favorable to appellee and judgment was accordingly rendered against appellants.

According to appellants' bill of exceptions No. 1, which controls over the statement of facts, Rule 372, subd. (k) Texas Rules of Civil Procedure, it appears that George Ward, a witness called by appellee testified that he was a friend of Mr. and Mrs. Reynolds of Reynolds Well Service, Inc., and also of Mr. Benson, a stockholder in the company. Mrs. Reynolds called him the night of the accident and he went out to the scene of the collision. Ward testified that he examined the tire and skid marks of the vehicles involved and that these marks indicated that the automobile driven by Aguilera was on the wrong side of the highway when the collision took place. He also testified that he told Aguilera 'it looked bad for him and that Aguilera did not have much to say.' Ward's testimony contradicted Aguilera's testimony that he was driving the automobile on the righthand side of the highway.

In the absence of the jury and for the purpose of testing the credibility of the witness, appellants' counsel propounded the following question to Ward and received the following answer:

'Q. Isn't it a fact, Mr. Ward, that notwithstanding your testimony that you were a friend of the Reynolds, and went over there out of friendship, that you are in fact the local agent in Freer, Texas, for the Traders and General Insurance Company, and that you sold casualty auto, casualty and public liability insurance, to Reynolds, the policy covering that vehicle involved in that accident, and that you have been Traders and General Insurance Company representative, and were at the time this accident happened? A. Yes, Sir.'

The trial judge refused to allow the reading of this question and answer to the jury, apparently upon the theory that it would inject into the case the fact that the appellee carried liability insurance.

We believe the above statement fairly shows how the controlling question stated in the forepart of this opinion arose in this case. There are certain other minor factual matters that may be mentioned. Ward testified for the purposes of another bill of exceptions that he was a statutory recording agent. Articles 5062a and 5062b, Vernon's Ann.Civ.Stats.; Home Insurance Co. of N.Y. v. Roberts, 129 Tex. 178, 100 S.W.2d 91. He also stated in answer to questioning by appellee's counsel, apparently as a qualification of appellants' bill of exceptions, that he had nothing to do with the adjustment or settling of claims, although it appears that insurance adjusters or investigators used his office telephone. Appellee argues that as a practical matter Ward was a mere local agent operating in a small town and should not be considered as anything else. These details are not deemed controlling upon the question presented here. The exact nature of the business relationship between a witness and a party is generally a matter for the jury to consider in passing upon the possible existence of bias or prejudice on the part of the witness, and we are confronted here with the undisputed fact that the witness Ward made an investigation of the collision, was called to the stand by the appellee, gave testimony which tended to discredit that of Roberts and Aguilera and was favorable to the appellee and also to the insurance company, an actual party at interest. Under the ruling of the trial judge, the witness although actually an agent of the insurance company, was allowed to appear as a wholly disinterested witness before the jury.

The overwhelming weight of authority in the United States supports the proposition that the trial court committed reversible error in this case. The annotators of the American Law Reports paraphrase the opinions in Moy Quon v. Furuya Co., 81 Wash. 526, 143 P. 99, Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, 223 S.W. 911, Jablonowski v. Modern Cap. Mfg. Co., 312 Mo. 173, 279 S.W. 89, and Wabash Screen Door Co. v. Block, 61 C.C.A. 639, 126 F. 721, and state the prevailing American rule as follows:

'The rule denying the right to show that defendant in a negligence case carries liability insurance is not intended to override the equally positive and salutary principle that a party has the right to cross-examine the witness produced by his adversary, touching every relation tending to show interest or bias, if the insurance company chooses to come before the jury, and place its own witnesses upon the stand, the plaintiff should be permitted to ask them if they are not there for the insurance company, which has produced them, or connected with it, for the case cannot honestly be placed before the jury without disclosure of the relation which such witnesses sustain to that company; in other words, an insurance company, in defending in the name of the record defendant, a personal-injury action, does not have the unqualified right to have that fact concealed because of the possible prejudice that may exist in the minds of the jurors against such companies.

'Accordingly, the rule is well established that facts tending to show interest, bias or motive on the part of a witness may be elicited on cross-examination, although such examination may necessarily disclose that the defendant in a personal-injury action is protected by insurance; for many facts wholly immaterial, and even positively prejudicial, on the main issues of a case, may be material as touching the credibility of a witness.' 56 A.L.R. 1439.

Numerous cases are cited in the annotation as supporting the prevailing rule. See also, Supplemental Annotations, 74 A.L.R. 1326.

In American Jurisprudence, it is stated that:

'To show bias or prejudice of a witness, it may be shown that he is employed by a party to the action, or by an insurance company for...