Clark v. Turner

• Decision Date: 04 February 1974
• Docket Number: No. 8408,8408
• Citation: Clark v. Turner, 505 S.W.2d 941 (Tex. Ct. App. 1974)
• Parties: Vester V. CLARK, Appellant, v. Ike P. TURNER, Appellee.
• Court: Texas Civil Court of Appeals

Page 941

505 S.W.2d 941

Vester V. CLARK, Appellant, v. Ike P. TURNER, Appellee.

No. 8408.

Court of Civil Appeals of Texas Amarillo.

Feb. 4, 1974.

Rehearing Denied March 4, 1974.

Alton R. Griffin, Lubbock, for appellant.

Griffith & Brister, Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.

ELLIS, Chief Justice.

In this suit arising out of an automobile-pedestrian collision, the plaintiff, Ike P. Turner, sought recovery of damages for personal injuries sustained while he was acting as a flagman on a highway construction project when he was struck by an automobile being driven by the defendant, Dr. Vester V. Clark. The defendant, now deceased, succeeded in this suit by the independent executor of his estate as defendant-appellant, has appealed from a judgment rendered on a jury verdict in favor of the plaintiff, also now deceased, with the community survivor and legal representative of his estate as the successor plaintiff-appellee. Affirmed.

This is the second appeal in this case. In the first trial of the case on January 25, 1966, the trial court rendered judgment that the plaintiff take nothing on the basis of the jury findings of negligence and proximate causation against both parties. On appeal of such first judgment in Turner v. Clark, 412 S.W.2d 707 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.), in an opinion by Chief Justice Denton, in March, 1967, this court reversed and remanded the case on the ground that the jury's finding that the failure of the plaintiff Turner to keep a proper lookout was a proximate cause of the collision was contrary to the great weight and preponderance of the evidence. On January 10, 1969, a Suggestion of Death of Vester V. Clark was filed by appellee, and on the same date, the court entered an order that writ of scire facias issue to D. D. Mahon, Executor of the Estate of Vester V. Clark, requiring him to appear at the next term of court and then and there to defend the suit. Service of the writ of scire facias was issued on November 25, 1970, and served on such executor on November 30, 1970. On December 18, 1970, a pleading entitled Original Answer of the Estate of Vester V. Clark, signed by D. D. Mahon, 'Executor of the Estate of Vester V. Clark, Deceased,' was filed. The firm of John Watts, attorneys for plaintiff, Ike P. Turner, was permitted to and did withdraw pursuant to order of the trial court dated and filed on March 26, 1971. Ike P. Turner, the plaintiff died on August 31, 1971. A Motion to Dismiss for Want of Prosecution, signed by D. D. Mahon, 'Independent Executor of the Estate of Vester V. Clark, Deceased' was filed on February 14, 1972. Such motion was overruled by the trial court on March 29, 1972. On August 24, 1972, Thomas J. Griffith, the attorney who replaced the plaintiff's former attorney, filed a Suggestion of Death of Ike P. Turner. On August 30, 1972, the trial court ordered that such suggestion of death be entered of record and that the suit be continued in the name of Edith K. Turner, community survivor of the Estate of Ike P. Turner, as plaintiff.

The cause was tried before a jury for the second time on February 20, 1973. In this second trial the jury found acts or omissions of negligence against the defendant Clark with respect to failure to keep a proper lookout, regarding the application of brakes and failure to turn his vehicle to the left, and that each of such acts or omissions was a proximate cause of the collision. The jury further found that the plaintiff Turner did not fail to keep a proper lookout for traffic on the road at the point and on the occasion in question, and that his failure to step over to the side of the road when he saw the defendant's vehicle approaching was not negligence. The trial court entered judgment for the plaintiff on the jury's verdict, and from such judgment the appellant has brought this appeal on five points of error.

In appellant's first point of error, it is contended that the trial court erred in refusing to allow Durward D. Mahon, an attorney at law and independent executor of the estate of Vester V. Clark, deceased, to participate in the second trial on its merits. In the sequence of events, as reflected by the record, we note that in the first trial the defendant Clark was represented by the law firm of Cade & Bowlin. As previously indicated, the judgment in the first trial was reversed and the cause remanded for another trial, and subsequent to the defendant's death, the suit was continued against the defendant in the name of D. D. Mahon, Independent Executor of the Estate of Vester V. Clark, Deceased. Two pleadings, Original Answer and Motion to Dismiss for Want of Prosecution, were signed 'D. D. Mahon, Executor of the Estate of Vester V. Clark, Deceased,' with no indication that they were signed by him as an attorney or as attorney for the Estate. All subsequent pleadings and instruments in behalf of the defendant, including Motion for New Trial and Direction to Clerk regarding instruments to be included in the transcript were signed by Alton R. Griffin as attorney for the defendant and did not contain the name or signature of Mr. Mahon as attorney or one of the attorneys for the defendant. It was admitted that Mr. Mahon was the executor of the estate of Doctor Clark and that pursuant to writ of scire facias issued he was served in this case as executor of the estate. Further, it was established that Mr. Mahon did not participate in the first trial and that during the second trial Mr. Griffin was lead counsel for the defendant. Further, Mr. Mahon recognized that Doctor Clark had coverage of $5,000 under a Texas standard automobile insurance policy containing the standard negotiation and litigation provisions and that Mr. Griffin was designated by the insurance company to handle the litigation in this case against the insured, Doctor Clark.

Apparently, the appellant's claim concerning Mr. Mahon's denial of the right to participate in the trial is based upon a certain incident occurring during the course of the trial. It appears from the record that at one point during the trial, Mr. Griffin, as appellant's attorney, requested that the attorneys be allowed to approach the bench. Pursuant to this request, the jury was retired to the jury room outside the hearing of the proceeding here involved, and the attorneys were asked to approach the bench. Mr. Mahon was told by the trial court that it wished only the attorneys in the case to approach the bench. After Mr. Mahon's insistence that he was an attorney for the Clark estate, the court recognized only Mr. Griffin as the attorney who would be permitted to approach the bench in behalf of the defendant. Also, at this point, the court directed him not to ask Mr. Griffin any questions, and Mr. Mahon was not allowed to participate in this conference between the court and the attorneys. The appellant contends that Mr. Mahon had filed the answer for the estate of the defendant and filed and participated in the cause with respect to the defendant's motion to dismiss for want of prosecution and challenges the court's action in denying him the right to aid in the representation of the estate during the above mentioned conference in connection with the trial of the case on its merits. Further, the appellant argues that the trial court's refusal to allow Mr. Mahon to so participate was a denial of a fundamental right of a party to appear and be represented by an attorney of his own choosing, and that such denial constituted reversible error. In support of this contention appellant has cited the cases of Swartz v. Swartz, 76 S.W.2d 1071 (Tex.Civ.App.--Dallas 1934, no writ); Maeding v. Maeding, 155 S.W.2d 991 (Tex.Civ.App.--Galveston 1941, no writ); Yellow Transit Co. v. Klaff, 145 S.W.2d 264 (Tex.Civ.App.--Galveston 1940, no writ); Stefanov v. Ceips, 395 S.W.2d 663 (Tex.Civ.App.--Amarillo 1965, no writ), and Metts v. Waits, 286 S.W. 923 (Tex.Civ.App.--Austin 1926, no writ). We note that in those cases the judgment of the trial court was reversed on appeal on the basis that the record showed there was no participation by or presence of an attorney in behalf of one of the parties during the hearing or trial; on the other hand, the record in the instant case reveals that not only was the executor of the estate present, but such defendant was represented throughout the trial by Mr. Griffin, attorney of record. He admitted that Mr. Griffin was lead counsel for the defendant in the second trial and was designated by the defendant's automobile insurance carrier to handle the litigation; that Mr. Griffin did, in fact, handle all essential phases of the trial on its merits, including the reading of the pleadings, the voir dire examination of the jury, and interrogation of witnesses; that Mr. Griffin was an experienced trial attorney; and that he had no dissatisfaction with the manner in which Mr. Griffin handled the case. Further, he admitted that although he was not permitted to stand at the bench on the occasion of the conference above mentioned, he was able to hear the conversation between counsel and the court, and conferred and advised with Mr. Griffin during the course of the trial concerning various aspects of the case.

We hold that the appellant was denied no fundamental right because of the trial court's refusal to permit Mr. Mahon to approach the bench; rather, this action was in the nature of a discretionary administrative measure. It is recognized that the lead counsel when present has control in the management of the case unless a change is made by the party himself to be entered of record. Rule 8, Texas Rules of Civil Procedure. The judge has general control of the trial and the discretion in this regard is very great, and the exercise of such prerogatives and discretion will be reviewed only upon a showing of abuse. 3 McDonald, Texas Civil Practice § 11.20.1, at 193 (1970); Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488 ...