Collins v. Smith

• Decision Date: 17 November 1943
• Docket Number: No. 8126.,8126.
• Citation: 175 S.W.2d 407
• Parties: COLLINS v. SMITH et al.
• Court: Texas Supreme Court

175 S.W.2d 407

COLLINS v. SMITH et al.

No. 8126.

Supreme Court of Texas.

November 17, 1943.

Rehearing Denied December 15, 1943.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Roen I. Smith and others as the sole surviving heirs at law of Clarence Smith, deceased, against Ed A. Collins to recover for the death of decedent resulting from automobile collision. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (170 S.W.2d 562), and defendant brings error.

Judgments of District Court and of Court of Civil Appeals affirmed.

Crain, Vandenberge & Stofer, of Victoria, and Lightfoot, Robertson & Gano, of Fort Worth, for plaintiff in error.

J. W. Ragsdale, of Victoria, and Merrill & Scott, of Houston, for defendant in error.

BREWSTER, Commissioner.

Clarence Smith died about twenty six hours after being injured in a collision between two Ford "pick-ups," one driven by himself and the other by George Edge, the agent of petitioner, Ed A. Collins. This is a suit by respondents, Roen I. Smith et al., the deceased's eight brothers and sisters, as his next of kin and only surviving heirs, to recover damages for his conscious physical pain, expenses of his last sickness and burial, and damages to his truck. A jury verdict resulted in judgment for respondents for $9,908.59, $9,000 of which was for the deceased's physical pain. That judgment was affirmed by the Court of Civil Appeals. 170 S.W.2d 562.

That the deceased suffered physical pain was established largely by the testimony of four of the respondents, which testimony was clearly objectionable under Art. 3716, R.S. 1925, if that objection had been made when the testimony was offered. The case closed at 2:30 p. m., when the charge was submitted to both sides for objection and the jury excused until 9 o'clock the next morning. At 8:30, the next morning, petitioner moved to exclude all this testimony because of the provisions of Art. 3716, supra. It was his first suggestion that the witnesses were disqualified under that statute. The trial court overruled the motion. The Court of Civil Appeals held that action was correct because the motion came too late.

The question was settled by this court as early as 1889, in Missouri Pacific Ry. Co. v. Mitchell, 75 Tex. 77, 12 S.W. 810, 811. In that case a doctor testified, without objection, to symptoms of injury related to him by the injured party. Later the defendant requested the court to instruct the jury not to consider the evidence. The request was refused. As to that action this court said, "We think the evidence was improper, and, if it had been objected to when offered, it ought to have been excluded. The objection, however, came too late when interposed for the first time in the form of a charge to the jury, and the court properly refused to give the charge." We see no difference, as relating to the question before us, between a requested instruction to disregard testimony and a motion to strike it, since the granting of either necessitates an instruction to the jury to disregard the testimony. Certainly the time element is the same here as it was in that case. It is said in 64 C.J., p. 215, sec. 224, that a motion to strike must ordinarily be made at the time the testimony is given, if the fact that it is objectionable is then apparent; that the court may properly overrule the motion if it is not made until after the witnesses have been discharged, or the close of the complaining party's case, or the conclusion of the evidence. In this case the taking of testimony had been concluded early in the afternoon on the day before the motion was offered, and, presumably, the witnesses had been excused. The trial court did not err, under those circumstances, in overruling the motion. For a late case in point, see the opinion on rehearing in Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W. 2d 753, 766, affirmed by this court in 132 Tex. 172, 123 S.W.2d 314, 317.

Petitioner insists that this testimony had no probative force, even if admitted without objection. The disqualification of witnesses under Art. 3716, supra, can be waived by failure to object at the proper time and for the proper reason, and when the disqualification is so waived the testimony has probative force. Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Adam v. Adam et al., Tex.Civ.App., 127 S.W.2d 1001; 14 Tex.Jur., p. 329, sec. 544.

In his fourth point of error petitioner complains that the award of $9,000 damages for the deceased's conscious physical pain was excessive. The Court of...