Condra Funeral Home v. Rollin

• Decision Date: 04 June 1958
• Citation: 314 S.W.2d 277,158 Tex. 478
• Parties: CONDRA FUNERAL HOME, Petitioner, v. Mary ROLLIN et vir, Respondents. No. a,-6739.
• Court: Texas Supreme Court

Page 277

314 S.W.2d 277

158 Tex. 478

CONDRA FUNERAL HOME, Petitioner, v. Mary ROLLIN et vir, Respondents.

No. a,-6739.

Supreme Court of Texas.

June 4, 1958.

Hart, Brown, Sparks & Erwin, Austin, for petitioner.

Ralph W. Yarborough, Tom H. Davis and Richard W. Yarborough, Austin, for respondent.

CALVERT, Justice.

In this suit by Mary Rollin and John Rollin for damages for personal injuries to themselves and to their minor daughter, now deceased, growing out of an automobile collision at a street intersection in the City of Austin, the Court of Civil Appeals has reversed a trial court judgment based on a jury verdict in favor of the defendant, Condra Funeral Home, petitioner here. Reversal was ordered because of misconduct of counsel for defendant, which misconduct the Court of Civil Appeals held was calculated to cause and probably did cause the rendition of an improper judgment. 309 S.W.2d 940.

The plaintiffs and their ill daughter were being transported to an Austin hospital in the defendant's ambulance when it collided with an automobile driven by Lee Shivers. Plaintiffs pleaded that certain acts of negligence on the part of the ambulance driver were proximate causes of the collision. Defendant pleaded that negligence of the driver of the automobile was the sole proximate cause of the collision and that the collision was an unavoidable accident.

The misconduct on which reversal was predicated occurred during cross-examination by defendant's counsel of the witness Schulle, a city policeman, called to testify by the plaintiffs, and is found in the following transcript of the proceedings:

'Q. And I believe you gave him (driver of the Shivers' car) a ticket for failing to yield the right of way to the ambulance?

'Mr. Davis: Your Honor, I would like to object to that and ask that the jury be instructed that they should not consider any opinion he may have had as to the fault in this accident, and anything of that character is improper and I think Mr. Brown knows it.

'The Court: Ladies and gentlemen of the jury, you will not consider the question and answer as to whether or not the driver of the Dodge was given a ticket, for any purpose in this case.

'Mr. Brown: Did I understand the Court instructed the jury not to consider the fact that he gave a ticket for failing to yield the right of way?

'The Court: I instructed them not to consider the question or the answer as to the ticket for any purpose in this case.'

Petitioner contends that the Court of Civil Appeals' judgment of reversal is erroneous for two reasons: (1). In failing to ask for a mistrial at the time the misconduct occurred plaintiffs waived their right to complain of it. (2). The misconduct was not, in any event, of such a prejudicial nature as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

In contending that by failing to move for a mistrial plaintiffs waived their right to complain of the improper question propounded to the witness and the improper statement made to the court in the presence of the jury, defendant relies on Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558.

Ford v. Carpenter was a suit for damages for personal injuries. During cross-examination of the plaintiff, defendant's counsel asked if he carried an insurance policy. Plaintiff's counsel's objection to the question was sustained, but there was no motion for a mistrial. The opinion of this Court reflects that a mistrial would have been ordered by the trial judge had it been sought. This Court recognized that 'ordinarily' conduct before a jury in the trial of a case indicating the existence or non-existence of protective insurance is improper and that it is calculated to prejudice the rights of one or the other of the parties. 216 S.W.2d 559. It was definitely held, however, that the right of the party prejudiced to complain was lost or waived by failure to seek a mistrial. 216 S.W.2d 560.

The Court of Civil Appeals declined to apply the rule laid down in Ford v. Carpenter to the facts of this case. It stated that the rule of that case should be applied only in cases in which the existence or nonexistence of protective insurance is brought to the attention of the jury by the conduct of which complaint is made.

We can conceive of no sound basis for the distinction made by the Court of Civil Appeals. On the other hand, we decline to apply the rule of Ford v. Carpenter in this case for reasons now to be stated.

The rule of Ford v. Carpenter was adopted by this Court in spite of a strong argument that it would give a defendant in a damage suit the unconscionable advantage of forcing a plaintiff, through deliberate misconduct, into a mistrial, thereby preventing him from securing a final trial of his case. It was adopted, as indeed the opinion makes clear, because it had been held by certain Courts of Civil Appeals that a defendant could not obtain a reversal of an adverse judgment because of misconduct of plaintiff's counsel unless a motion for mistrial was made. The cases cited in which it had been so held were Harrison-Wright Co. v. Budd, Tex.Civ.App., 67 S.W.2d 670, writ dismissed; Russell v. Adams, Tex.Civ.App., 18 S.W.2d 189, no writ history, and Moore v. Norman, Tex.Civ.App., 137 S.W.2d 833, writ dismissed, judgment correct. See 216 S.W.2d 560. The court pointed out that it would be unjust and would lead to unnecessary complications to apply the rule of waiver to defendants while refusing to apply it to plaintiffs, and said (216 S.W.2d 560-561):

'Furthermore, the impartial application of the rule will eliminate the anomalous situation that would arise by allowing a trial to proceed to a judgment that will be allowed to stand only if it is favorable to one of the parties, and where it is certain that a new trial must be ordered if the other party wins. To compel the trial to proceed under such a hazardous and uncertain outcome would be trifling with the authority and dignity of the court, and would be far more grievous than any inconvenience or harm the plaintiff might suffer by being subjected to the same penalties of waiver which are applied to the defendant under similar circumstances.'

It will be noted that the cases cited in which it was held that a defendant waived his right to complain of misconduct of counsel unless he moved for a mistrial were all decided before the adoption in 1941 of the Texas Rules of Civil Procedure. In Ford v. Carpenter this Court assumed the soundness of those decisions and did not examine into that question. Assuming them to be sound, an impartial administration of justice between plaintiffs and defendants undoubtedly compelled the application to plaintiffs of the rule of waiver applied to defendants in those cases, and this Court so held. On the other hand, had they been examined and found unsound there would have been no basis for application of the rule of waiver to plaintiffs. Cases decided by this Court since Ford v. Carpenter, called to our attention by plaintiffs, seem now to justify and to require their examination.

(1) Under Rules 434 and 503, Texas Rules of Civil Procedure, appellate courts are directed not to reverse a trial court judgment for errors of law committed during the course of the trial of a case unless the error complained of 'amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.' In enforcing those Rules we have held with respect to many and various types of errors that a reversal may be ordered only when a review of 'the whole record' convinces the reviewing court that but for the error a different verdict or judgment would probably have been rendered. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860; Dallas Ry. & Term. Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379; Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596; Lumbermen's Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367. Now, surely no party should be required to seek a mistrial because of an error committed against him at a time when the 'whole record' has not yet been made and it is therefore impossible for either him or the trial court to know whether it will finally appear that it probably caused an improper judgment. It should be enough to preserve the question for counsel to object to improper conduct and for the court to give an instruction to the jury, in language as strong as the nature of the misconduct requires, not to consider it for any purpose or let it affect the verdict.

As heretofore noted, Rules 434 and 503 were not in existence when Harrison-Wright Co. v. Budd, supra; Russell v. Adams, supra, and Moore v. Norman, supra, were decided. Under the rule of presumed prejudice then prevailing all errors of law of the type involved were presumed to be so prejudicial as to require a new trial, and there was then much stronger reason for requiring a party who expected later to seek a new trial because of an error deemed prejudicial to seek mistrial at the time and thus avoid a riding out of the error until verdict had been returned.

(2) In other fact situations in cases more recent than Ford v. Carpenter we have not required a motion for mistrial as a prerequisite to review of error or as a prerequisite to reversal because of its prejudicial character. Texas Employers' Ins. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (improper argument); Houseman v. De Cuir, Tex.Sup., 283 S.W.2d 732 (improper argument); ...