Boyd v. Robinson

• Decision Date: 27 June 1957
• Docket Number: No. 3477,3477
• Parties: Alton BOYD, Appellant, v. T. W. ROBINSON, Appellee.
• Court: Texas Court of Appeals

Page 430

304 S.W.2d 430

Alton BOYD, Appellant, v. T. W. ROBINSON, Appellee.

No. 3477.

Court of Civil Appeals of Texas, Waco.

June 27, 1957.

Rehearing Denied July 25, 1957.

Ed Roy Simmons, Mexia, and Lynn H. Van Meter, Dallas, for appellant.

Bradley & Geren, Groesbeck, for appellee.

TIREY, Justice.

This is a collision case, and the plaintiff grounded his cause of action on the negligence of the defendant and alleged that he sustained damages to his car in the amount of $400. Defendant went to trial on his first amended answer and cross action and denied that he was negligent in any respect. On the contrary, he alleged that the plaintiff was negligent, and as a result of the plaintiff's negligence, he sustained damages in the sum of $415 and prayed for appropriate relief. The jury, in its verdict, found substantially (1 and 2) that defendant failed to keep that lookout which would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances and that such failure was a proximate cause of the collision; (3, 4 and 5) that defendant drove his automobile to the left of the center of the street and that his act in so driving was negligence, and was a proximate cause of the collision; (6, 8 and 11) that Janice Battreall, the driver of plaintiff's car, did not fail to keep that lookout which would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances and that she did not fail to bring her automobile to a stop at the stop sign on Bonham Street before entering the intersection of Bonham and Travis Streets, and that she did not fail to timely apply her brakes; (14) that Janice Battreall did not operate her car across the center line of Travis Street into the east bound traffic lane on Travis Street.

The parties in open court stipulated by their respective attorneys that the reasonable cash market value of the plaintiff's automobile in Limestone County, Texas immediately prior to said collision was the sum of $450, and immediately after said collision the reasonable cash market value in Limestone County was the sum of $50.

The court, on the verdict of the jury and the stipulations of the parties, entered judgment in favor of the plaintiff against defendant in the sum of $400 and costs of court, and further found that cross plaintiff Alton Boyd take nothing from the cross defendant on his alleged cross action, and decreed accordingly. Defendant and cross plaintiff seasonably filed his amended motion for new trial, and, it being overruled, perfected his appeal to this court.

Appellant has assailed the judgment against him on what he designates as four points. They are, substantially: The court erred (1) in failing to instruct the jury to disregard sidebar remarks directed to the jury made by plaintiff's attorney, since these remarks were improper and prejudicial to defendant; (2) in permitting counsel for plaintiff to argue to the jury as to the speed of defendant's automobile over the objection of defendant's counsel, since there was no evidence of speed introduced in the trial of the case; (3) in permitting counsel for plaintiff to interrogate defendant as to when he had met his attorney from Dallas first, since this was prejudicial, irrelevant and immaterial to the issues in the case; (4) in overruling defendant's motion for new trial based upon plaintiff's attorney's argument to the jury that the defendant had only met his counsel from Dallas on the morning of the trial, since such argument was only intended to prejudice the defendant and was immaterial and irrelevant to the trial of the case.

Appellant, in his amended motion for new trial, among other things, alleged the following:

'The trial court erred in permitting counsel for plaintiff to read from an unsigned typewritten statement, consisting of two pages, to the defendant before the jury, after the defendant's counsel had objected thereto.'

'The trial court erred in permitting the counsel for plaintiff to read from an unsigned typewritten statement, consisting of two pages, to the defendant after counsel for the defendant had objected to said reading and after defendant had denied making such statement, such testimony by plaintiff's counsel being inadmissible and improper for the jury to consider, having no authentication and being wholly disowned by the defendant and strenuously objected to by defendant's counsel on the basis that said instrument was of a hearsay nature and wholly inadmissible for consideration by the jury.'

Appellant seasonably presented to the trial court his bills of exception Nos. 1 and 2 dealing with the foregoing error, which exceptions were refused by the court, and the court thereafter prepared and filed his bills of exception Nos. 1 and 2, and we quote the pertinent parts thereof:

'(1) Be it remembered that upon the trial of the above entitled and numbered cause on the 15th day of November, 1956, counsel for the plaintiff, L. L. Geren, on cross-examination asked the defendant, Alton L. Boyd, if he had made a written statement in regard to the collision in question in regard to certain things that happened and counsel for the defendant objected but I do not remember the grounds of the objection and I do not remember whether the objection was sustained or overruled. Defendant Boyd denied making the written statement. As to the question of good faith of plaintiff's counsel, I have now seen the original statement signed by defendant Boyd, which statement he denied making, claiming that the statement he was questioned about was not the statement he had signed, but a comparison of the two statements shows that they are identical copies except for the matter of the signature of the defendant, Alton L. Boyd, on the original.'

'(2) Be it remembered that upon the trial of the above entitled and numbered cause on the 15th day of November, 1956, plaintiff's attorney, L. L. Geren, asked defendant, Alton L. Boyd, on cross-examination whether he made a written statement to a gentleman from Waco, to which the defendant answered in the negative. Plaintiff's attorney then asked if the defendant had signed a statement for that gentleman, to which the defendant answered that he had signed a statement but not that particular statement; that the statement had been submitted to him for signature but that it had been incorrect and he had refused to sign it. Counsel for plaintiff then read a portion of the unsigned statement wherein the defendant was purported to have said that his windshield was all fogged up at the time of the collision and asked if defendant had made that statement. Counsel for the defendant objected to said question on the grounds that the statement had been disowned and that counsel for plaintiff was merely attempting to get evidence which was false and inadmissible before the jury, at which point counsel for plaintiff replied but...