Classen v. Benfer

• Decision Date: 21 October 1940
• Docket Number: No. 10712.,10712.
• Citation: 144 S.W.2d 633
• Parties: CLASSEN et al. v. BENFER et al.
• Court: Texas Court of Appeals

144 S.W.2d 633

CLASSEN et al. v. BENFER et al.

No. 10712.

Court of Civil Appeals of Texas. San Antonio.

October 21, 1940.

Rehearings Denied November 13, 1940.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by P. W. Benfer and others against John G. Classen and the Memorial Park Company for the removal from a cemetery of the body of a sister of the plaintiffs, which could not be located, wherein the defendants filed cross-actions against each other. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Schweppe & Schweppe and Church & Steger, all of San Antonio, for appellants.

Harry Hertzberg, Marion R. McClanahan, and Duval Edwards, all of San Antonio, for appellees.

NORVELL, Justice.

In 1918, Adolph Benfer, one of the appellees here, sold and conveyed to appellant, John G. Classen, a tract of land in Bexar County upon which was located the Schuhlmeier Cemetery. Although the deed contains covenants of general warranty, the existence of the cemetery was known to Classen at the time of the sale.

In 1937, Classen procured and paid appellant Memorial Park Company to disinter and remove the bodies buried in the Schuhlmeier Cemetery. These bodies were reintered in the Wetmore Cemetery some miles away.

Appellees here and plaintiffs below were P. W. Benfer, Adolph Benfer and Mrs. Augusta Burkett, brothers and sister. They brought suit for damages against appellants, John G. Classen and Memorial Park Company, alleging that said parties had, without appellees' consent, removed the bodies of their grandparents, their parents and their sister, Amelia Benfer, from the Schuhlmeier to the Wetmore Cemetery. Trial was to a jury, which in response to special issues submitted found that the bodies of appellees' parents were not removed, but that the body of the sister was removed and could not now be located in the Wetmore Cemetery. The trial court submitted no issues in regard to the removal of the bodies of appellees' grandparents. The jury assessed damages of $1,400 against appellants in favor of each of the appellees. Judgment was entered for appellees upon the verdict. Appellants bring the case here on numerous assignments of error. Each appellant submitted a separate brief, but, for the most part, the propositions relied upon by each appellant are similar or identical.

The first group of appellants' propositions assert that the judgment rendered is excessive as to each appellant. Appellants rely principally upon the case of Tapia v. Zarb, Tex.Civ.App., 70 S.W.2d 464, decided by this court, in which it was held that the testimony of a third person, that the plaintiff was "lying in bed, or sitting in a chair," and "looked sick," was insufficient to support an award of actual damages for mental anguish resulting from the removal of the body of plaintiff's husband. That case is not in point here. An extensive discussion of the testimony introduced upon the trial could serve no useful purpose. We do, however, point out that testimony of third persons having an opportunity to observe the actions of one claiming damages as a result of a wrongful act is admissible upon the issue of mental anguish. Missouri, K. & T. Ry. Co. of Texas v. Linton, Tex.Civ.App., 141 S.W. 129. Evidence tending to show a close friendly feeling or love prior to the death of the deceased, between the dead person and one asking damages for the wrongful removal of the body of deceased, may also be considered by the jury upon the issue of mental anguish. Such evidence was introduced upon the trial of this case and was sufficient to support a conclusion that appellees, and each of them, did suffer mental anguish as a result of appellants' acts. As to the amount of damages, we can not say that the verdict is so clearly excessive as to indicate that the jury "disregarded the evidence or rules of law." Flores v. De Galvan, Tex.Civ.App., 127 S. W.2d 305, 308. Appellants' propositions Nos. 1 to 6, inclusive, are overruled.

Appellants by their seventh proposition assert that this case must be reversed because of improper argument to the jury.

The record discloses that Mr. Harry Hertzberg, one of appellees' attorneys, made the following argument: "I am not going to refer to him as Uncle, but as Mr. John Classen, because I think Mister is a very good title for any American citizen. I do not know why he should be made a hero of by his counsel because he did this thing. The whole plea has been what a good man he is; what a fine man he is. You know he would not harm anybody on the face of the earth. Well, I want to tell you, Gentlemen of the Jury, that he has gravely injured his fellow-man in this case. I personally can think of nothing more terrible happening except one or two things possibly than what has happened here,—one would be the murder of one's living relative, or the defilement of a female member of the family; and after that, Gentlemen, I can think of nothing worse than to do the thing that we charge here he has done, if he did it."

Appellants objected, and the trial court instructed the jury to "disregard the statement with reference to murder and defilement of a female member or relative of the family."

This proposition does not present reversible error. The reference to murder or defilement of a female relative may have been extravagant, but counsel plainly stated a matter of personal opinion. The argument is not outside the record, and for that reason the situation presented here differs from that present in the cases cited by appellants, such as Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946, and Woodard v. Texas & Pac. Ry. Co., 126 Tex. 30, 86 S.W.2d 38. In arguing cases to a jury attorneys are allowed a comparatively wide latitude in the drawing of inferences and construction of arguments, so long as they do not attempt to state purported facts not disclosed by the record. Corn v. Crosby County Cattle Company, Tex.Com.App., 25 S.W.2d 290; 41 Tex.Jur. 772 and 797.

We are further of the opinion that if the argument be considered improper, all prejudice resulting therefrom was removed by the trial court's instruction to the jury. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

Appellants' seventh proposition is overruled.

Appellants' next group of propositions complain of the court's charge to the jury, especially in regard to a special instruction given in connection with the issues relating to damages. This instruction is probably incorrect as an abstract matter of law, but we are not authorized to reverse a case unless an error is specifically pointed out by an assignment of error and accompanying propositions in this court, supported by a record affirmatively showing that the error urged was called to the attention of the trial court. Appellants here say the court below erred in failing to define the term "mental pain and suffering"; that the instruction given was on the weight of the evidence, and when taken with its connected issues, rendered such issues...