Carter-Mullaly Transfer Co. v. Bustos

• Decision Date: 24 May 1916
• Docket Number: (No. 5674.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 187 S.W. 396
• Parties: CARTER-MULLALY TRANSFER CO. v. BUSTOS et al.
• Court: Texas Court of Appeals

187 S.W. 396

CARTER-MULLALY TRANSFER CO. v. BUSTOS et al.

(No. 5674.)^*

Court of Civil Appeals of Texas. San Antonio.

May 24, 1916.

Rehearing Denied June 21, 1916.

Appeal from District Court, Bexar County; W. F. Ezell, Judge.

Action by Adolfo Bustos, by his father and next friend, Joseph Bustos, against the Carter-Mullaly Transfer Company. From a judgment for plaintiff Adolfo Bustos and against plaintiff Joseph Bustos, defendant appeals. Affirmed.

Hertzberg, Barrett & Kercheville, of San Antonio, for appellant. T. H. Ridgeway, of San Antonio, for appellees.

FLY, C. J.

This is a suit for damages instituted by Joseph Bustos, for himself, and as the father and next friend of his minor son, Adolfo Bustos; said damages alleged to have occurred by an automobile belonging to appellant running into and dragging the said minor, who was riding a bicycle at the corner of Houston and North Flores streets in San Antonio. The cause was tried by jury and resulted in a verdict against Joseph Bustos, but in favor of Adolfo Bustos for the sum of $1,000.

The evidence shows that Adolfo Bustos was injured through the negligence of the driver of appellant, and that he was damaged in the sum found by the jury.

The first and second assignments of error are grouped, and are the only assignments presented for the consideration of this court. The first assignment complains of the action of appellees' counsel in asking two jurors whether they represented an insurance company, and the second is that the court erred in permitting appellees to ask witnesses Thomas H. Wade, Miss A. N. Goodenough, and Dr. Redmond "as to what man they talked to after the accident, and, when one of the witnesses answered that he talked to F. M. Coleman, the appellees persisted in asking who F. M. Coleman was, and the answer was that he was an insurance agent." The only proposition is:

"Where there is a persistent effort by counsel for plaintiff, in a personal injury suit, to convey to the jury a suspicion or surmise that defendant holds a policy of insurance in a company not a party to the suit, which will protect the defendant from loss in case a verdict is rendered against it, this is sufficient cause for reversal."

The first assignment of error is supported by a bill of exceptions which fails to show that the question propounded to the two jurors was asked in the presence and hearing of the persons who afterwards served on the jury, and if it be error to permit such a question to be asked, as has never been held by this court, the contrary having been held by other Courts of Civil Appeals, no harm seems to have come to appellant on account thereof. Neither of the persons to whom the question was directed served on the jury. If any court has held that the mere mention of an insurance company in a personal injury or death case is sufficient to reverse a judgment whether or not such mention had any effect on the case, it is best not to follow it, and to return to the domain of common sense and reason.

In connection with the second assignment of error, the record fails to disclose that any witness was ever asked who F. M. Coleman was, or that any witness ever stated that he was an insurance agent. No such statements are found in bills of exception or statement of facts, and the assignment has no basis in fact upon which to rest. No bill of exceptions was taken to what Dr. Redmond swore, and the word "insurance" is not mentioned in the statement of facts. No such witness as Wade testified, but we will take it for granted that Wayne was meant. A discussion of any issues sought to be raised by appellant might be pretermitted, as there is no basis in fact for the assignment; but we think the questions raised are of such vast importance, in view of the extended business done by casualty and accident insurance companies, that we have concluded to give expression to the views of this court in connection with references in a personal injury or death case to the fact that the defendant was insured.

There is nothing in the record that tends to indicate that appellees, either knew that Wayne would answer that he had talked to "the insurance people," or that Miss Goodenough would, in response to the question, "Did you make a written statement?" reply:

"Yes, sir; some one came there, I think they was from the insurance company, wanting to settle the case, and asked me the extent of his injuries."

Certainly the last part of the statement was not responsive to the question, but was volunteered on the part of the witness. No effort was made on the part of appellant to show that appellees had talked to the...