Brock v. Graham

• Decision Date: 20 February 1959
• Docket Number: No. 15984,15984
• Citation: 321 S.W.2d 593
• Parties: C. W. BROCK, Individually and as Next Friend For Minor Son, Edward Brock, Appellant, v. Bernard Charles GRAHAM, Appellee.
• Court: Texas Court of Appeals

Page 593

321 S.W.2d 593

C. W. BROCK, Individually and as Next Friend For Minor Son Edward Brock, Appellant, v. Bernard Charles GRAHAM, Appellee.

No. 15984.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 20, 1959.

Kouri & Banner, Jack G. Banner, Wichita Falls, for appellant.

Jackson, Walker, Winstead, Cantwell & Miller, Fred H. Benners and D. L. Case, Dallas, for appellee.

BOYD, Justice.

C. W. Brock, individually and as next friend for his minor son, Edward Brock, sued Bernard Charles Graham for damages resulting from a collision between an automobile driven by Graham and a bicycle ridden by Edward Brock. There was a verdict and judgment for Graham and C. W. Brock, individually and as next friend, appeals.

Appellant contends that the court erred in overruling his motion for new trial on the grounds that he was prejudiced by appellee's voluntary and deliberate statement from the witness stand that the police came to the scene of the collision and 'measured the skid marks. I did not receive a ticket, or anything'; and by a comment by appellee's counsel, in his jury argument, on appellant's failure to call as witnesses the police officers who investigated the accident, they being not under the control of appellant, and being equally available to appellee.

When appellant's attorney completed his voir dire examination of the jurors, he requested the court to instruct appellee's counsel 'not to inform the jury on voir dire, or during voir dire examination, or during the trial of the case, or state that his client did not receive a traffic ticket. We move you instruct him not to inform the jury, or the witness not to refer to it in any way, that his client did not receive a traffic ticket.' The court said: 'I sustain it for this time, but I will have to see some authorities if it comes up.'

Appellee testified:

'Q. What about your brakes? Were they in good condition? A. Yes, sir.

'Q. Now, you say when you first saw him you immediately applied your brakes? A. That's right.

'Q. What else, if anything, did you do? A. There wasn't anything I could do but stop. I didn't see him until we collided.

'Q. Had you had any prior warning he was there? A. No, sir, I didn't.

'Q. State whether or not this panel delivery truck obstructed your view of this Donnell driveway as you were approaching. A. Yes, sir, it did. It is a closed panel truck. It wasn't an open truck by any means--closed completely around.

'Q. You mentioned skid marks. Did you leave some skid marks? A. Yes, sir, I did. The police measured the skid marks. I did not receive a ticket, or anything.

'Mr. Kouri: Object to that and ask that it be stricken.

'The Court: Sustain the objection.

'Mr. Kouri: We ask the Court to instruct the jury, if Your Honor please.

'The Court: Ladies and Gentlemen of the Jury, you will not consider it.'

We do not think that appellee's statement that 'I did not receive a ticket, or anything,' calls for a reversal. Rule 434, Texas Rules of Civil Procedure.

In addition to the oral instructions to the jury, as set out above, in its written charge the court told the jurors to answer the issues 'from the evidence you have heard in the trial'; not to decide who they thought ought to win, and then try to answer the issues accordingly; but simply to answer the questions as they found the facts from the evidence, without concerning themselves about the effect of their answers.

The answers of the jury were favorable to appellee on all issues relative to his negligence, and against Edward Brock as to several questions as to his own negligence, and found that Edward's acts of negligence in several particulars were proximate causes of the collision. It was further found that the collision in question was not the result of an unavoidable accident.

In Condra Funeral Home v. Rollin, Tex., 314 S.W.2d 277, 278, the misconduct occurred during the cross-examination by defendant's counsel of a policeman, called to testify by plaintiffs. The witness was asked, 'And I believe you gave him (driver of the Shivers' car) a ticket for failing to yield the right of way to the ambulance?' The question was objected to and the court was requested to instruct the jury not to consider 'any opinion he may have had as to the fault in this accident,' and the court gave the following instruction: 'Ladies and gentlemen of the jury, you will not consider the question and answer as to whether or not the driver of the Dodge was given a ticket, for any purpose in this case.' Counsel then said, 'Did I understand the Court instructed the jury not to consider the fact that he gave a ticket for failing to yield the right of way?' and to which the court replied: 'I instructed them not to consider the question or the answer as to the ticket for any purpose in...