Bridges v. City of Richardson

• Decision Date: 14 July 1961
• Docket Number: No. 15869,15869
• Citation: 349 S.W.2d 644
• Court: Texas Court of Appeals
• Parties: Mildred K. BRIDGES, a widow, Individually and as next friend of Joe Wallace Bridges, III, and Suzanne Bridges, Minors, Appellants, v. CITY OF RICHARDSON and Ray F. Smith & Son, Appellees.

Page 644

349 S.W.2d 644

Mildred K. BRIDGES, a widow, Individually and as next friend of Joe Wallace Bridges, III, and Suzanne Bridges, Minors, Appellants, v. CITY OF RICHARDSON and Ray F. Smith & Son, Appellees.

No. 15869.

Court of Civil Appeals of Texas, Dallas.

July 14, 1961.

Rehearing Denied Sept. 29, 1961.

Woodgate, Richards & McElhaney, John H. McElhaney, Dallas, for appellants.

Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellees.

WILLIAMS, Justice.

This is an action for wrongful death brought by the surviving widow, individually, and as next friend of the two minor children of Joe W. Bridges, deceased. It was the contention of the plaintiffs in the trial court that the deceased was killed as a result of a sudden upset of a motor scooter owned by his son, but operated by the deceased, on the occasion in question. It was their contention that he upset occurred at night upon the deceased's crossing an unlit trench across a public street which was a part of a construction project wherein defendant Ray F. Smith & Son were installing underground water pipes for the City of Richardson. Plaintiffs alleged that the defendant City of Richardson had entered into a contract for the installation of water mains or sewer pipes with the defendant Ray F. Smith & Son; that the defendant contractor did, as a part of this work, dig a ditch at right angles across Greenville Avenue, and, after installing pipes, attempted to refill said ditch. It was alleged that the ditch was negligently or improperly refilled and that, as a matter of fact, a deep hole or gulley was left across the highway. Plaintiff claimed that the deceased, while riding along said street on the motor scooter, was caused to be thrown a great distance through the air when he ran into the ditch, the accident resulting in his death. The two defendants denied the allegations and alleged contributory negligence against the deceased, and, in the alternative, alleged the defense of unavoidable accident. The case was submitted to a jury upon special issues. The jury found that neither of the defendants was guilty of any of the negligent acts complained of; that the occurrence was not the result of an unavoidable accident; that the deceased was negligent in two respects; and the amount of damages sustained by plaintiffs was 'none'. Based upon this verdict the trial judge rendered judgment for the defendants.

Appellants' first point on appeal is that 'the court erred in overruling appellants' motion in limine and, over objection, admitting highly prejudicial evidence for jury consideration showing that appellants had accepted a sum of money in settlement from a former co-defendant who was dismissed as a party before trial.'

It is apparent from the record that the consulting engineering firm of Forrest & Cotton had originally been included as one of the defendants in this case, but subsequently dismissed, the reason for such action not being apparent. The trial pleadings did not include Forrest & Cotton as a defendant. In advance of the trial, and by motion in limine, plaintiffs requested the trial judge to instruct counsel for defendants not to refer to directly or indirectly certain subjects incorporated in said motion which included, inter alia, the following: 'The fact that Forrest & Cotton, the consulting engineers who drew the plans and specifications for the installation of the water mains in the City of Richardson under the contract involved in this cause, was formerly a party to this lawsuit.' Said motion also requested that no reference be made to the request for admissions propounded by plaintiffs, and the answers thereto, to Forrest & Cotton, one of the former defendants. The record does not contain an order of the court on this motion. There is nothing in the record to indicate that evidence was introduced in support of the motion. The record is extremely vague and indefinite as to the ruling of the court on said motion. At one point during the trial objection was interposed concerning testimony relating to Forrest & Cotton whereupon the court stated: 'The court ruled on that.' The record is silent as to whether such ruling was to the effect that said motion was sustained or overruled. The trial court did overrule objections by plaintiffs during the trial and permitted testimony to be introduced concerning Forrest & Cotton. The transaction vigorously objected to on appeal by appellants occurred while Mrs. Bridges was being cross-examined, as follows:

'Mr. Martin:

'Q. Now at the time that he filed the suit, he filed the suit for you, not only against Mr. Smith and the City of Richardson, but also against the firm of Forrest & Cotton, did he not? A. That is right.

'Q. Since that time have you through Mr. Richards made some kind of a deal with Forrest & Cotton---- 'Mr. Richards: If it please the Court----

'Q. Whereby you are to be paid some money?

'Mr. Richards: If the Court please, I object to this line of question as being completely immaterial, irrelevant, it calls for something that is nothing more than pure speculation on the part of the witness, I don't think it has anything to do with this.

'Mr. Martin: It is on the matter of damage, Your Honor, so there would be no double recovery here.

'Mr. Richards: There is double recovery or anything else, they may well have gone out on a point of law.

'Mr. Martin: You know very well they didn't go out on a point of law.

'Mr. Richards: You know very well there in no double recovery

'Mr. Martin: I know pretty well that you have made a deal for some money and that is what I want to ask about so that they can't get it twice.

'The Court: I am going to overrule the objection, you may have your bill on the particular question.

'Q. (By Mr. Martin) Mrs. Bridges, have you made a deal with Forrest and Cotton whereby you are to receive some money for letting them out of the law suit?

'The Court: You must answer the question because the court has ruled that you must answer it and he has a bill of exceptions.

'Mr. Richards: If you know, Mrs. Bridges.

'The Court: If you know you must answer the question.

'A. Yes.

'Q. How much money? A. I believe it is the sum of $2,000.

'Mr. Martin: That is all, thank you.

'The Court: Do you have any further questions? The Court understands you take an exception to this particular ruling?

'Mr. Richards: Very much, Your Honor.

'The Court: I am not interested in whether it is very much, or not, just whether or not you take an exception.

'Mr. Richards: I except.'

Appellants vigorously contend that it is unfair and prejudicial to a plaintiff for a defendant to be allowed to inform the jury that a former co-defendant had compensated the plaintiff for a part of the damages sustained; that there was no legitimate reason for the jury to be allowed to consider such evidence; and that the jury had the duty to decide the liability facts regarding the remaining defendants, which was a question entirely unrelated to whether the plaintiffs had been fortunate enough to obtain a partial recovery. In support of their plea for reversal appellants rely upon such cases as Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703; Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811; Skyline Cab Co v. Bradley, Tex.Civ.App., 325 S.W.2d 176, (err. ref. n. r. e.), and similar cases. While we recognize the rule that ordinarily the evidence relating to settlement and compromise, and the payment of money therefor, may have no proper place before the jury in case of this kind yet, viewing the record as a whole, we are of the opinion that there are a number of reasons why appellants' point is without merit and must be overruled.

In the first place, we are of the opinion that the matter was not properly presented to the trial judge so that an apparent error could be eliminated prior to tender of the testimony. The use of a motion in limine is appropriate and desirable in such cases to eliminate, in advance of trial, the possibility of any prejudicial testimony being offered before the jury. For a discussion of the use of such motions in limine see 'Personal Injury Litigation in Texas' paragraph 11.11(1). The very purpose of the use of the in limine motion is to enlighten the court, as well as adverse counsel, of the specific nature of the anticipated testimony which should not be offered. In this instance appellants' motion failed to set forth any facts which would advise the court, or counsel, of the nature of the alleged settlement made or the amount of money paid. The...