Cross v. Houston Belt & Terminal Ry. Co.

• Decision Date: 19 October 1961
• Docket Number: No. 13688,13688
• Citation: Cross v. Houston Belt & Terminal Ry. Co., 351 S.W.2d 84, 96 A.L.R.2d 1 (Tex. Ct. App. 1961)
• Parties: Wayne CROSS, Appellant, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Appellee.
• Court: Texas Civil Court of Appeals

Page 84

351 S.W.2d 84

96 A.L.R.2d 1

Wayne CROSS, Appellant, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Appellee.

No. 13688.

Court of Civil Appeals of Texas, Houston.

Oct. 19, 1961.

Rehearing Denied Nov. 9, 1961.

Brown, Bates, Brock 3 Morgan, Warner F. Brock, Houston, for appellant.

Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden, James S. Covington, Jr., Houston, for appellee.

WERLEIN, Justice.

This suit was brought by appellant, Wayne Cross, to recover for personal injuries allegedly sustained by him while engaged in work for appellee, under the Federal Employer's Liability Act, 45 U.S.C.A. Sec. 51 et seq., and Safety Appliance Act, 45 U.S.C.A. Sec. 1 et seq. Appellant appeals from a take-nothing judgment based on the jury verdict, and assigns numerous errors occurring during the trial which was unduly lengthened by much unwarranted repetitious examination and testimony of witnesses.

By his first Point appellant complains of the following argument made by counsel for appellee:

"* * * that this is a case where a man who had a pre-existing condition, and for whatever reason he laid down or was out in that yard, he was afforded the best medical treatment Harris County could offer, and he refused it, and he placed himself in the hands of these attorneys who had every reason in the world from their financial interest in this case to do everything that they can to hoodwink this Jury from the time that they went shopping for doctors and they have been trying to put in twisted evidence they do everything they can to try and----'

'Whereupon Counsel for Plaintiff said:

"Your Honor we object to that line or argument, we think it is out of order.'

'Whereupon the Court said:

"Counsel I think you can draw emphasis from the testimony.'

'Whereupon Counsel for Plaintiff said:

"Your Honor I think it is improper and I object to it.'

'Whereupon Counsel for the Defendant said:

"Well, I think their conduct describes it better than anything and has shown it, that when this man went to hire them, when he could have gotten the treatment that he needed, and when he hired these attorneys it was just a question of manufacturing testimony, and they went out and hire any witnesses they can get to say things that you have heard from this witness stand here. I don't know of any other way that we could have met it, because it is not pleasant to stand up here and have to criticize people like this, but when they can sue you for hundreds of thousands of dollars on manufactured evidence like this, when all they have to do is pay a $25 filing fee to bring a case like this into Court----"

We have read the entire statement of facts, consisting of more than 1,200 pages, and find nothing therein to justify the foregoing argument. There is no evidence showing that appellant's counsel had any financial interest in the suit, or that they went shopping for doctors, or that they were putting in twisted evidence, or that there was any manufacturing of testimony, or that said attorneys went out and hired any witnesses they could get to testify as they did on the witness stand. The argument was improper, inflammatory and prejudicial in the extreme. It clearly imputed perjury to all of appellant's witnesses and subornation of perjury to appellant's counsel. It was an appeal to prejudice and passion and reasonably calculated to cause the jury to render an improper verdict. It was not invited by or in response to statements or argument of appellant's counsel.

We think such argument was of the incurable type. Possibly the Court might have taken some of the sting out of it by sustaining appellant's timely objection and instructing the jury not to consider it, but instead, the Court stated: 'Counsel, I think you can draw emphasis from the testimony.' Thus did the Court lend its approval to the poignant poison of prejudice injected into the case, and improperly comment upon the evidence and the credibility of appellant's witnesses and counsel. Such comment was not waived by counsel for appellant as were certain other comments made by the Court prior to argument. Lumbermen's Lloyds v. Loper, 1954, 153 Tex. 404, 269 S.W.2d 367.

The more serious question confronting us is whether such improper and prejudicial argument of counsel, coupled with the Trial Court's comment, probably caused the rendition of an improper verdict and judgment in the case.

The evidence shows that although appellant had a prior back condition which at times troubled him, he was not incapacitated thereby. He went to work for appellee on August 9, 1954 as a switchman after being given a thorough physical examination by appellee's doctor. He was able to perform his duties satisfactorily although he lost six to eight days from work at one time as the result of his back bothering him. He was not incapacitated by any prior sickness or physical condition from performing his work as a switchman, until after the accident of November 22, 1957. We think appellant's testimony with respect to the accident in question was corroborated by other testimony and we are inclined to the view that the jury's finding of no injury, which under the definition of the court would include no aggravation of any prior condition, probably resulted from the improper argument of appellee's counsel and the Court's comment.

It would unduly lengthen this opinion and serve no useful purpose to summarize the testimony of the twelve doctors and more than a dozen lay witnesses who were called to testify. We have carefully and painstakingly considered all of the testimony and evidence, and have concluded that in the light of the whole record, such argument was not only reasonably calculated to cause but probably did cause the rendition of an improper judgment in the case. Indeed, the charge by appellee's counsel to the effect that appellant's entire case was based upon perjury and manufactured testimony, to which his counsel was a party, could scarcely have done other than result in harm as evidenced by the jury finding that appellant sustained no injury. Southern Pacific Company v. Hubbard, 1956, 156 Tex. 525, 297 S.W.2d 120; Southwestern Greyhound Lines v. Dickson, 1951, 149 Tex. 599, 236 S.W.2d 115; Texas & N. O. R. Co. v. Wilkerson, Tex.Civ.App.1953, 260 S.W.2d 912; Airline Motor Coaches v. Campbell, Tex.Civ.App., 184 S.W.2d 532, writ ref., w. o. m.; Stephens v. Smith, Tex.Civ.App., 208 S.W.2d 689, writ ref., n. r. e.; Texas Employers' Insurance Association v. Butler, Tex.Civ.App., 287 S.W.2d 198, writ ref., n. r. e.; Gulf, Colorado & S. F. Ry. Co. v. Latham, Tex.Civ.App., 288 S.W.2d 289, writ ref., n. r. e.; Rule 434, Texas Rules of Civil Procedure.

We shall briefly discuss assignments of error directed to mattters that may arise upon a new trial of this case.

Appellant strenuously contends that the Court erred in permitting Dr. Dickson to read in evidence a medical report from the Houston Speech & Hearing Center on the ground that it was hearsay. Although Dr. Dickson suggested to Dr. Bradford that appellant be referred to said clinic for some tests, he was not present when the tests were made nor did he supervise or conduct the examination. He was not in a position to prove up the report. The report was not proven as a hospital record, under Article 3737e, Vernon's Ann.Texas St. Had it been, we think it would have been admissible under the holding in Travis Life Insurance Company v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256, writ ref., n. r. e., per curiam, 1959, 160 Tex. 182, 328 S.W.2d 434, in which case the court held admissible hospital records including a diagnosis of leukemia.

While it is true a physician may relate as the basis for his opinion and not as independent evidence to establish the fact, the history given him by the patient, we know of no authority holding it permissible for a doctor to read in evidence another doctor's unproven diagnosis or report, regardless of whether he has based his opinion in whole or part thereupon. The report in question was not used for the purpose of impeaching Dr. Dickson, but for the purpose of showing the truth of the statements therein contained. It was hearsay and prejudicial to appellant and should not have been admitted in evidence...