Carson v. Amberson

• Decision Date: 19 February 1941
• Docket Number: No. 10908.,10908.
• Parties: CARSON v. AMBERSON.
• Court: Texas Court of Appeals

148 S.W.2d 972

CARSON v. AMBERSON.

No. 10908.

Court of Civil Appeals of Texas. San Antonio.

February 19, 1941.

Rehearing Denied March 19, 1941.

Appeal from District Court, Bexar County; Everett F. Johnson, Judge.

Suit by John Carson, administrator of the estate of Paul Carson, deceased, against Joe Amberson, doing business under the name of Union Bus Lines, to recover for the death of the deceased, who was allegedly struck by one of the defendant's buses. Judgment for defendant, and the plaintiff appeals.

Judgment affirmed.

Geo. M. Mayer and M. J. Arnold, both of San Antonio, for appellant.

Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for appellee.

NORVELL, Justice.

This is the appeal of John Carson, administrator of the estate of Paul Carson, deceased, from a judgment that he take nothing as against Joe Amberson, doing business as Union Bus Lines.

On the night of October 30, 1938, Paul Carson, also known as Paul Karanzulis, received injuries which resulted in his death. Appellant contended that the deceased and one Bill Pappas, while returning from Kerrville to San Antonio, Texas, stopped upon the side of what is locally referred to as the Fredericksburg road for the purpose of repairing a tire upon the automobile in which they had been riding; that while so engaged, Carson was struck by a bus owned and operated by appellee. Appellant, as administrator, sued for damages for physical pain and mental anguish suffered by Paul Carson prior to his death, on November 2, 1938, and for medical and burial expenses incurred. Appellant also brought the suit for the benefit of Christ Karanzulis, the father of the deceased, alleging that the father had been damaged in being deprived of the reasonable expectations of financial support from his deceased son. Appellant's cause of action was founded upon negligence, but the jury's findings were to the effect that the driver of appellee's bus was not guilty of a negligent act which proximately caused Paul Carson's death, and that the deceased was guilty of negligence which contributed to his injuries and resultant death.

Appellant presents six propositions of law in support of his prayer for a reversal of the trial court's judgment. The sixth proposition presents the contention, in effect, that as a matter of law, Paul Carson's death was proximately caused by the negligence of appellee's servants, and that, as a matter of law, the deceased was not guilty of contributory negligence. We hold that the evidence raised fact issues for the jury in regard to the several questions of negligence involved, and accordingly overrule appellant's sixth proposition.

By the remaining five propositions, appellant contends that this case must be reversed because of an improper argument made by appellee's counsel.

The bill of exceptions on this point contains the entire argument made by counsel but does not show that any objections were made to the argument at the time it was made. The objections or exceptions urged here were first set forth in the court below in a motion for new trial. This motion was overruled by the trial court.

The general rule is that "a case will not be reversed on account of improper argument before a jury unless objection is interposed at the time the argument is made." An exception to the general rule, however, applies when "the argument complained of is so plainly prejudicial that an instruction by the court to the jury not to consider the same would in all probability be of no avail." City of Pampa v. Todd, Tex.Com.App., 59 S.W.2d 114, 116; Basanez v. Union Bus Lines, Tex.Civ.App., 132 S.W.2d 432.

In determining the question of whether or not improper argument constitutes reversible error in the absence of a timely objection thereto, we are to consider the argument in the same light as if proper objection had been made and the trial court had admonished the jury not to consider the same. Robbins v. Wynne, Tex. Com.App., 44 S.W.2d 946; Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556. If, when viewed in this light, it does not clearly appear that no injury could have resulted from the argument, the judgment must be reversed. Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311.

Bearing the above rules in mind, we examine the specific complaint of appellant addressed to the argument complained of. We shall not attempt to discuss in detail all the remarks complained of by appellant, for the reason that those not mentioned in the opinion were either permissible upon the record, or were beyond peradventure of such a nature that all prejudice resulting therefrom could have been removed by an admonition of the trial court.

Appellant's propositions, in effect, present two main contentions:

1. That the attacks made upon the credibility of appellant's witnesses, particularly Bill Pappas, were not justified by the evidence and were highly inflammatory and prejudicial.

2. That the argument of counsel constituted an appeal to racial prejudice.

In the trial below, appellee took the position that although the bus had struck an open door of the automobile involved, the deceased, Paul Carson, had not been hit by appellee's bus. An issue involving this theory advanced by appellee was submitted to the jury and answered in the negative, contrary to appellee's contention. However, the trial court's holding, evidenced by the submission of the issue, was that the evidence was sufficient to support an affirmative as well as a negative finding thereon, and we agree with that holding. A fact issue was involved, and certainly counsel was entitled to argue his theory to the jury. It further appeared, according to appellee's witnesses, that the behavior of Pappas immediately after the collision was somewhat unusual to say the least. Appellant suggests that Pappas was suffering from a brain concussion, a permissible theory under appellant's evidence. Counsel for appellee, in arguing his theory of the case that deceased had not been injured by appellee's bus, commented upon the conduct of Pappas immediately after the collision, and, in order to explain the injuries sustained by the deceased, suggested that some act of Pappas may have been responsible therefor. This was not reversible error. In presenting a legitimate theory of a case, "the fact that remarks of counsel are harsh [will] not authorize or justify a reversal of the case. The court may not restrict counsel in argument...