Aultman v. Dallas Ry. & Terminal Co.

• Decision Date: 30 June 1953
• Docket Number: No. A-3997,A-3997
• Citation: 260 S.W.2d 596,152 Tex. 509
• Parties: AULTMAN et al. v. DALLAS RAILWAY & TERMINAL CO.
• Court: Texas Supreme Court

Page 596

260 S.W.2d 596

152 Tex. 509

AULTMAN et al. v. DALLAS RAILWAY & TERMINAL CO.

No. A-3997.

Supreme Court of Texas.

June 30, 1953.

Rehearing Denied Oct. 7, 1953.

Irwin & Irwin, Dallas, for petitioners.

Burford, Ryburn, Hincks & Ford and Bruce Graham, Dallas, for respondent.

CALVERT, Justice.

Mildred L. Aultman and husband, petitioners, sued Dallas Railway & Terminal Company, respondent, and Packer Corporation for damages for personal injuries sustained by Mrs. Aultman while a passenger on respondent's bus when it collided with the rear end of a truck belonging to Packer Corporation. Following a jury verdict on special issues the trial court awarded the Aultmans a money judgment against respondent and ordered that no recovery be had against Packer Corporation.

Only two questions were raised in the Court of Civil Appeals. One was alleged improper argument made to the jury by Mrs. Aultman's counsel; the other was that the trial court abused his discretion in limiting the time for jury argument. The Court of Civil Appeals held that the argument was such as to require that the judgment be reversed and the cause remanded. It also sustained the point relating to limiting time for argument, after observing that the point 'will not be present on a new trial.' 253 S.W.2d 900.

Both questions are here, although the application was granted on that of improper argument.

Respondent's bus ran into the rear end of the truck when the latter was stopping at a changing traffic signal light. Mrs. Aultman was thrown from her seat and suffered injuries, because of which she was taken by ambulance to a hospital, where she remained for eight days. She then went to the home of her husband's mother, who took care of her for about three weeks. After that she went to her own home where a sister stayed with her 'for a while'.

Upon her arrival at the hospital and while she was being held in the emergency ward, Mrs. Aultman was X-rayed by Dr. Sandridge, who then called Dr. Loiselle, a specialist in back injuries. The latter made an examination, took 'several more X-rays and then a needle test.' He saw her several times, 'almost every day' while she remained in the hospital, treating her, principally by prescribing exercises, and taking more X-rays. After she left the hospital, Mrs. Aultman went to Dr. Loiselle's private office three or four times. On the second of these visits he again took some X-rays; on the third visit he compard these X-rays with those previously taken at the hospital. For these services Dr. Loiselle tendered his bill for '$92.00 or $92.50.'

Dr. M. D. Fry, who had attended Mrs. Aultman at the birth of her first child three or four years before the happenings involved here, testified that several weeks before the collision Mrs. Aultman came to his office to determine whether she was pregnant; that he did examine her and concluded that she was pregnant; that she was then in good physical condition. While she was in the hospital following her injuries Dr. Fry went to see her in response to a call from some hospital doctor. He swore she was complaining of pain in her back and abdomen and some light contractions; that he saw her twice more at the hospital and found her symptoms somewhat better; that she came to see him at his office one time after leaving the hospital, on which occasion he found her about three and one-half months pregnant; that on May 1 in another hospital he delivered her of a dead foetus. On the basis of what he saw in Mrs. Aultman's condition and a hypothetical question embracing the substantial facts of the collision as petitioners claimed they were, Dr. Fry expressed the opinion that the injuries sustained by her in the collision caused the miscarriage.

The argument question arose out of the testimony of Dr. Ruth Jackson, as a witness for Mrs. Aultman. It appears that she saw Mrs. Aultman only once, which was on April 10, when she made an orthopeduc examination of Mrs. Aultman, some 6 or 7 weeks after the latter's injuries were sustained. In that process she took X-rays, examined some made by Dr. Loiselle and discussed the case with the latter. The effect of her testimony was that Mrs. Aultman had received serious injuries, particularly to her back; that an operation on her spine would probably restore her back to 80 or 85 per cent of its former normal condition, but that the operation would wholly disable Mrs. Aultman for about a year; that it was likely that she could never resume her former part-time professional dancing.

On cross-examination, respondent sought to show by Dr. Jackson that she had frequently appeared as an expert witness for plaintiffs in personal injury suits. In the course of that injury she was asked about having testified for a plaintiff several months previously in a certain case, and whether after being questioned along the same line she had become angry and cursed Bruce Graham, her questioner, who was of counsel for defendant in that case as he is in this, and had told Graham that she 'was going to fix him'. She positively denied having cursed Graham, but in answer to whether she had said to him that she was going to fix him, she replied: 'No, I did not. I have no quarrel with Mr. Graham. I said I would get even with him some day, and I will.' To the next question, which was 'You are trying it right now, aren't you?' She answered 'No, I am not.'

So it was that Counsel Graham took the stand for his client, the respondent, and gave his version of what Dr. Jackson said and did as a witness in the trial of the other case. He swore that she became angry at his questions as to the amount she would be paid as a witness in that case; that after she left the stand she came near him and directed 'blasphemous' language at him; and that she pointed her finger at him and said, 'The next time I come to the courthouse and testify against you I am going to fix you up.'

Graham did also testify, as urged by petitioners, 'that Dr. Jackson's motives were not honorable'. How this expression got into the record appears in the following excerpt from Graham's testimony on cross-examination by petitioners' counsel:

'Q. Do you think, in your own opinion, in your own mind, as you have testified about Dr. Jackson here, that's the only thing Dr. Jackson has in her mind when she comes to the courthouse to testify is money? Do you honestly think that? A. Do you want my opinion about it?

'Q. Yes. A. Based on what I know or what my information is, I have some serious doubts about her sincerity.

'Q. Thank you for your opinion. Now, I wish to ask you, do you think that Mr. Jackson, in this particular case, has no interest in this little woman right here than money? A. No, she has other interest than money. I think it is quite evident. Listen, I don't think the money in this case is the center of Dr. Jackson's interest.

'Q. Thank you. A. I will tell you, if you want to know what it is.

'Q. No, I appreciate your answer there, Mr. Graham. In other words, you will agree with me that the interest of an attorney, that the interest of a doctor like Dr. Jackson, an interest in a client or patient is a normal thing and the money aspect isn't the only reason they wish to serve them. A. No, her interest, I don't think is honorable.

'Q. You don't think it is? A. No, I think it is just to what she said she was going to do and that is to fix me.'

During this same cross-examination petitioners' counsel asked Graham whether respondent had conducted 'a personal examination of any kind of Mrs. Aultman'. The reply was, 'No, I am not permitted to. The law won't let us have an examination'. Then he was asked whether he had read the deposition of Mrs. Aultman, 'taken by your firm in our office', to which Graham replied 'No'. He further answered in reply to other questions from petitioners' counsel that he did not know that Mrs. Aultman gave specific permission in her deposition for respondent to make an examination of her. Thereupon came this colloquy:

'Q. If it was given and it is in here, your Claims Department had the right to go talk...