Carter v. Lindeman, 1722.

• Decision Date: 03 December 1937
• Docket Number: No. 1722.,1722.
• Citation: Carter v. Lindeman, 111 S.W.2d 318 (Tex. App. 1937)
• Parties: CARTER v. LINDEMAN et ux.
• Court: Texas Court of Appeals

111 S.W.2d 318

CARTER v. LINDEMAN et ux.

No. 1722.

Court of Civil Appeals of Texas. Eastland.

December 3, 1937.

Appeal from District Court, Palo Pinto County; B. W. Patterson, Judge.

Action by A. J. Lindeman and wife against Carl Carter. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Sullivan & Marmaduke, of Duncan, Okl., and W. H. Penix, of Mineral Wells, for appellant.

Bouldin & Bouldin, of Mineral Wells, for appellees.

LESLIE, Chief Justice.

This suit was instituted in the district court of Palo Pinto county by A. J. Lindeman and his wife, Lula Lindeman, against Carl Carter, a resident of the State of Oklahoma, to recover damages alleged to have been occasioned by injuries received in a collision of the plaintiffs' car with one driven by the defendant. Different grounds of negligence are alleged. Besides pleas to the jurisdiction, there were demurrers, general and special denials, etc. The trial was before the court and jury. Upon the answer of the latter to special issues judgment was rendered in favor of the plaintiffs. The defendant appeals.

The first assignment is that the court erred in overruling the defendant's motion to quash service of process. Essentially the motion is an attack upon the constitutionality of Senate Bill No. 116, chapter 125, P. 279, Acts 41st Legislature of Texas, and the amendment thereof in chapter 70, Senate Bill No. 172, Acts 43d Legislature of Texas, p. 145. These laws are to be found in Vernon's 1936 Civil Statutes, art. 2039a. The sufficiency of the service is questioned under the provisions of article 2039a, (Acts 43d Leg., c. 70), providing for notice to nonresidents sued in this state for injuries resulting from car collisions while such nonresidents are using the public highways of Texas. The contention made is that the title or enacting clause of said bills do not sufficiently reflect the subject matter of the bills.

We find it unnecessary to pass upon this constitutional question. The appellant appeared in the trial court in person and by attorney. He pleaded to the jurisdiction of the court, filed an answer containing a special and general exceptions, general denial and special answer to the merits and tried the case. This removes any question of the sufficiency of service of process. Further, there can be no special appearances in cases in the courts in Texas. Waco Hilton Hotel Co. v. Waco Dev. Co. (Tex.Civ.App.) 75 S. W.2d 968, 971; Osvald v. Williams (Tex. Civ.App.) 187 S.W. 1001; Wright v. Jones (Tex.Civ.App.) 33 S.W.2d 292; 4 Tex.Jur. 616, 617, and 618; Id. p. 651, § 27.

We overrule the assignments complaining of the action of the trial court in overruling general and special exceptions. They are numerous and it is unnecessary to discuss them.

The sixth assignment is to the ruling of the court in refusing to let witness Pemberton give an opinion in answer to the following question: "* * * from what you saw, from the position of the cars and direction each one of them was going and from what you saw after the cars stopped of [after] this collision, what would you say or who would you say was at fault or to blame for the collision?"

There is no merit in such a contention. A jury question was involved.

Assignments 7 and 8 complain of rulings by the court in excluding like testimony offered through other witnesses. No error is shown.

The appellees except to the sufficiency of assignments 48, 49, 50, and 51, and object to their consideration.

The ground of objection is that the bills of exception preserving the respective points do not state that the argument complained of was not "justified by the evidence, nor do they show that they were not in reply to argument made by the defendant's counsel." In West Texas Utilities Co. et al. v. Renner (Tex.Civ.App.) 32 S.W.2d 264, this contention was sustained, but when that case reached the Supreme Court (53 S.W.2d 451, 455) it was held that: "A bill of exceptions to improper argument is not required to negative any possible fact or state of attending circumstances that would render the objectionable matter without prejudicial effect." We therefore overrule this objection.

The forty-eighth and forty-ninth assignments will be considered together. The forty-eighth is directed to that portion of the closing argument to the jury by appellees' counsel wherein he states, in discussing the testimony of an important witness offered by the appellees: "I have known Joseph Walker, first witness for plaintiff, many years, and if you had known him as well as I do you would know that he was doing his best to tell the truth. He is a truthful and upright young man and he told the truth in this case as far as he knew it and I know he told the truth." To this bill the court attached the "explanation" that when the remarks were made he instructed the jury not to consider the same and admonished the counsel to refrain from using similar language concerning other witnesses.

The forty-ninth assignment is addressed to other statements of appellees' counsel in his closing argument to the jury. The litigants failing to agree upon a bill reflecting the argument, the court prepared one stating therein with reference to the objectionable matters: "Mr. Sullivan, attorney for defendant, stated to you that he had known Mr. Carl Carter, defendant, for many years and that he knew him to be an honest man and that if you knew him as he knew him, you would believe that he had testified to. * * * I want to tell you that I know this country girl, Mrs. Fowler, and know she was telling the God Almighty truth, and if you knew her like I know her, you too would believe she was telling the truth."

It is unnecessary to go into detail, but these and other witnesses testified upon material and controverted issues giving different accounts of the circumstances attending the collision. Various objections were timely urged to the argument, among them, that they were unsworn statements of the attorney offered upon the merits of the case and were unfair and unlawful attempts to bolster up the testimony of said witnesses. The last bill also discloses that the trial court added thereto the "explanation" that when the appellees' counsel made the remark he instructed the jury it "was not evidence in the case and that they should not consider same."

The appellees justify the use of the language challenged by assignments 48 and 49 on the ground that such argument was provoked by the attorney for the appellant, who, according to the bill supporting assignment 49, first stated in his argument to the jury with reference to the defendant (his client) the following: "That he had known Mr. Carl Carter for many years and that he knew him to be an honest man and that if you knew him as he knew him you would believe that he had testified to." Upon the theory that this argument by appellant was a departure from the record to improperly discuss the veracity of a witness, the appellees contend that their attorney merely left the record in response to said argument and rightfully replied as he did.

We believe a like question was considered by this court in Sanders v. Lowrimore, 73 S.W.2d 148, wherein we held that the argument of counsel for defendant as to ability of his client to pay judgment did not justify argument of plaintiff's counsel (in an action for injuries) calling attention to the plaintiff's poverty. When the case reached the Supreme Court (103 S.W.2d 739), it held that: "Defendants whose counsel improperly argued defendants' poverty could not complain that plaintiffs' counsel thereafter improperly argued plaintiffs' poverty." It is said in that opinion: "The arguments are related one to the other, and are of the same nature. According to this bill, counsel for defendant first inflicted upon the plaintiff the same identical wrong which she now complains of as an injury to herself. Having brought about the situation which provoked the language complained of, she is in no position to ask for relief."

If, as stated by the Supreme Court in the Lowrimore Case, the arguments are related one to the other and are of the same nature, it is because the arguments pertained to the poverty of the opposing litigants. In the instant case if it can be said that the arguments of the different attorneys relate "one to the other, and are of the same nature," it is because the argument of each attorney related to the improper bolstering up of the veracity of respective witnesses — in brief, veracity. The analogy between the Lowrimore Case and this one is obvious. There "poverty" was discussed. Here veracity of witnesses. If such argument is permissible in the first instance, it would appear to be so in the latter. There is a difference in the two cases. The Lowrimore Case involved but a single individual on each side of the litigation, whereas, in this case the attorney for the appellees came to the rescue of two witnesses in matters of veracity. However, if the principle has application under such circumstances it would appear that under provocation an attorney may depart from the record and vouch for the veracity of any number or all of his witnesses, without committing reversible error. That is, the party first departing from the record would be estopped to complain that the other did so in reply. Applying the rule laid down in the Lowrimore Case, 103 S.W.2d 739, to the facts of the instant one, we are of the opinion that assignments 48 and 49 should be overruled and that the objectionable argument be held to have been provoked by improper argument of like nature on the part of the attorney for plaintiffs.

Assignment 50 is directed to another portion of the closing argument of appellees' attorney. The plaintiffs put Dr. Patterson upon the stand as witness to testify concerning the injuries sustained by plaintiff's wife in the collision. Dr. Patterson was a material witness, going extensively into the nature of the injuries sustained, their...