Barrington v. Duncan

• Decision Date: 28 May 1942
• Docket Number: No. 11404.,11404.
• Citation: 162 S.W.2d 1025
• Parties: BARRINGTON et al. v. DUNCAN et al.
• Court: Texas Court of Appeals

162 S.W.2d 1025

BARRINGTON et al. v. DUNCAN et al.

No. 11404.

Court of Civil Appeals of Texas. Galveston.

May 28, 1942.

Rehearing Denied June 18, 1942.

Appeal from District Court, Brazoria County; Graham Gillis, Judge.

Action by Clarence L. Duncan against G. B. Barrington and others for injuries from a truck collision, wherein the Texas Employers' Insurance Association intervened. From a judgment for plaintiff and intervener, defendant appeals.

Affirmed.

A. R. Rucks, of Angleton, and Earnest, Bondies & Flahive and Strasburger, Price, Holland, Kelton & Miller, all of Dallas, for appellants.

Carlos B. Masterson, of Angleton, and Sewell, Taylor, Morris & Connally, of Houston, for appellees.

GRAVES, Justice.

This appeal is from a $10,319.50 judgment in appellee Clarence L. Duncan's favor against appellants (with $1,535.33 thereof allocated to the intervening Insurance Association), entered by the district court of Brazoria County upon the verdict of a jury in response to special issues submitted, the stipulations of the parties on the trial, and the independent findings of the court itself, recited to have been from "the undisputed evidence"; the amount was so allowed as for reasonable compensation to such appellee for personal injuries to himself, found by court and jury to have been visited upon him by the negligence of appellants in a night-time collision on the public highway in Brazoria County between a truck being driven north by appellee and one belonging to both appellants, but being driven south on the occasion in question by appellant, Gus Barrington.

By the mutual concessions of both sides, the controlling issue on the facts as to the cause of the collision was as to which side of the black line running down the center of the highway it occurred on — each driver charging the other with coming over on his own wrong side of the road and thereby bringing about the tragedy.

With the basic issue of fact so mutually fixed as the theory of the submission of the cause to the jury, it was literally cross-examined by a great number of inquiries from the court, what are deemed to have been its most material findings being these:

The appellant, Gus Barrington, was guilty of negligence which proximately caused the collision, in (1) driving his truck to the left of the center of the highway; (2) operating his truck at an excessive rate of speed; (3) failing to have his truck under reasonable control; (4) failing to turn his truck to the right immediately prior to the collision. He did not fail to slacken the speed of his truck as it approached the appellee's truck. The appellee was in a position of peril immediately prior to the collision, and the appellants' truck driver actually discovered the perilous position of the appellee prior to the collision, and realized that in reasonable probability he would not extricate himself from such position of peril, and he made such discovery and realization in time, so that by the exercise of ordinary care he could have avoided the collision, but he failed to exercise such care, and such failure was a proximate cause of the collision. The jury exonerated the appellee from any contributory negligence, and found further that the appellants' truck driver was not in a position of peril immediately prior to the collision.

Appellants, in this court, attack none of the jury findings as having lacked support in the testimony, so that they must be accepted as the established facts in the controversy over the field they so cover.

Appellants' points, as presented here for a reversal, in substance, are these:

(1) That the $10,319.50 verdict and judgment was so excessive, under the underlying facts, as to show that the jury was influenced by improper motives in awarding that much;

(2) That the court's permitting appellee Duncan "to testify repeatedly, over objections of the appellants, that he had a wife and family * * * for the purpose of showing the mental anguish the plaintiff suffered as the result of his injuries because he had a wife and family", was reversible error;

(3) The jury's answer to special issue No. 42, finding that appellant's driver was at the time of the collision acting under an emergency, was in irreconcilable conflict with all of the jury's "answers of negligence and proximate cause of appellants, as contained in issues 1 to 3, inclusive, 6 to 10, inclusive, and 14 to 18, inclusive";

(4) The court reversibly erred, (a) in permitting the appellee Duncan to testify, over objection, that he knew his compensation insurance company would be reimbursed for whatever compensation it had previously paid him out of whatever judgment he recovered against a third party; (b) appellants should have been granted their requested new trial because of improper conduct of the jury during their consideration of the case, the evidence having conclusively shown that during their deliberations there was a discussion as to whether or not appellants carried insurance — one statement being made to the effect that they had to have a $10,000 policy before they could operate;

(5) The trial court reversibly erred in permitting improper and prejudicial arguments to be made by the appellee's attorney to the jury in each and all of these particulars, to-wit: (a) That defendant, Gus Barrington, had brought some witnesses to the courtroom and had them sworn, but had not offered them, they being obviously as available to the appellee as to the appellants; (b) in telling the jury in his closing argument that the appellee's compensation-insurer was playing second fiddle in the suit, and "so far as counsel was concerned, the jury could throw the Texas Employers' part of the case right out of the window", such improper statement tending to impress the jury that it could find in favor of appellee Duncan and not in favor of the compensation-insurer, "although under the law no such thing was possible"; (c) such counsel's suggesting to the jury, in his closing argument, that appellants' driver, Gus Barrington, "was drunk on the occasion of the accident, although there was no evidence to sustain any such charge"; (d) such counsel's informing the jury — in his closing argument — of the legal effect of their answers, by telling them that appellants' defensive issues from 19 through 40 "were inquiries from the court as to whether or not the appellee Duncan should be held responsible for the accident"; (e) such counsel's appeal to the sympathy or bias of the jury, in his closing argument, "by telling them that they with one stroke of the pen had to do everything for the appellee Duncan that he was deprived from doing for himself, that they alone could pay him, and that they alone had the chance to pay the debt that some one owed him in the verdict they were about to return, and that he was at their mercy."

This court fails to see eye-to-eye with appellants in any of the criticisms that are leveled at the trial court's action, under the facts presented by this record; on the contrary, with the cause of the collision having so been uncontrovertedly determined to have resulted from the appellants' negligence in all the particulars so found by the jury, no disturbance of that determination can be properly made here, unless some one or more of "the errors of law" so complained of against the trial court are found here to have amounted to such a denial of the rights of the appellants as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment below.

When the settings under each and all of the challenged actions are taken into consideration, this court is unable to reach the opinion that any one of them had such prejudicial effect.

The claim for excessiveness in the verdict is obviously inept, when the extent of the injuries so inflicted upon the 28-year-old appellee are taken into consideration; prior to the accident he was an able bodied truck driver, whereas after it, up to the time of the trial, he had been unable to do any hard work, could not drive a truck, and was too weak even to lift his little boy, the only work he had been able to do was answer the telephone and sweep out a two-room office; further, that he had received "a fractured skull, extending `up through for a distance of three or four inches, back up through the center', and a fracture of the fifth cervical vertebra, a broken neck, and possibly `a fractured rib or two', with numerous cuts and bruises about him and a laceration over his left eye, with the left side of his face torn and swollen"; and that, for the future, "the very thing he could least do" would be to turn his head to the side, or back, in operating a truck or automobile, which was his established occupation before his injury", because of a broken and permanently stiff neck.

The verdict returned in such circumstances does not shock the conscience of this appellate court.

Appellants, it is thought, overstate what the record shows, in their insistance that appellee's counsel "repeatedly injected into the case the fact that he had a wife, and family"; the sole reference to his marital status appearing to have been the appellee's statement that his wife was present at the hospital when he first came to himself from the state of unconsciousness he was knocked into by the accident; that it hurt him to move and that his wife helped him to move, nursed him at home, helped him bathe his injured eye, and that she was unable to appear in court as a witness. It is true that in describing his physical state, he further incidentally testified that he was still so weak that he was unable to lift his little boy, but appellants appear to have made no objection to such last statement.

Moreover, it further appears that appellee's counsel did not persistently insist that such testimony from him was admissible as showing the mental anguish he went through over his wife and family, but that, in replying to an inquiry from the court as to...