D. & H. Truck Line v. Lavallee

• Decision Date: 11 April 1928
• Docket Number: (No. 7206.)
• Citation: 7 S.W.2d 661
• Parties: D. &. H. TRUCK LINE et al. v. LAVALLEE.
• Court: Texas Court of Appeals

7 S.W.2d 661

D. &. H. TRUCK LINE et al. v. LAVALLEE.

(No. 7206.)

Court of Civil Appeals of Texas. Austin.

April 11, 1928.

On Rehearing, June 13, 1928.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Matthew E. Lavallee, a minor, by next friend, against the D. & H. Truck Line and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Wm. H. Russell and E. L. Early, both of San Antonio, for appellants.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellee.

McCLENDON, C. J.

Suit by Matthew E. Lavallee, a minor, suing by next friend, against B. L. Dickehut and J. R. Hankinson, as partners under the name of D. & H. Truck Line, for personal injuries resulting from a collision between an automobile in which plaintiff was riding and the rear end of defendant's truck, which was parked on a public highway.

This is a companion case to D. & H. Truck Line et al. v. Ella Mae Hopson et al., affirmed by the Court of Civil Appeals on March 22, 1928, 4 S.W.(2d) 1013. Ella Mae Hopson, plaintiff in the companion case, was in the car with Lavallee, and her suit grew out of the same collision. We have carefully examined the brief and the opinion in the companion case, and, with the exception of the improper conduct of counsel complained of in appellants' fifteenth and sixteenth propositions, every ground of error urged in this appeal was presented and overruled in the companion case. On the authority of that case, we overrule all of appellants' propositions and assignments germane thereto, except the fifteenth and sixteenth, to which alone we will give further consideration.

We quote the following from the opinion in the companion case as a fair general outline of the occurrences out of which the suit arose:

"On the night of July 17, 1926, appellee, Ella Mae Hopson, a girl 16 years old, and her father, W. B. Hopson, were riding as invited guests in a car owned and driven by W. H. Vinson, a young man 18 years old. They were going from Devine to Asherton, where they all lived. Matthew Lavallee was also riding in the car. About midnight the car collided with the rear of a loaded truck owned and operated by appellants, which was parked upon the highway without lights. The driver of the truck was appellants' employee. He had parked the car and gone to sleep in the cab of the truck. It was a short distance from Big Wells, and the driver had stopped for the night, as he had deliveries to make in Big Wells the next morning. Lavallee and Miss Hopson were asleep at the time the collision occurred. The latter was seriously injured, and sued appellants, by her father, as next friend, to recover the damages sustained. The father also sued to recover the damages sustained by him as the result of his daughter's injuries.

"The graveled portion of the highway at the place of the accident was 16 or 18 feet wide. The left wheels of the truck, according to the driver's own testimony, testifying for appellants, extended at least 3 feet over upon the graveled portion of the highway and were in the travel lane upon that side of the road. He also admitted the truck was parked at a slight angle, so that its rear extended more into the lane of travel than the front end. It was also shown that upon the left side of the truck there was a 4×6 timber about 10 feet long, extending several feet beyond the rear of the truck. To the end of this timber a red rag was tied. It is not made clear by the evidence whether Vinson's car first struck the end of this timber or the body of the truck. In either event, Vinson's car failed to clear the obstruction by just a few inches."

Under propositions 15 and 16, error is assigned upon the refusal of the trial court to grant a motion to declare a mistrial because plaintiff's attorney interrupted defendants' attorney near the close of his argument to the jury with the following statement:

"Mr. Russell, I just want to object to your repeated statements that Mr. Hankinson would have to pay, on the ground that you know he is protected in this case."

Up to that time there had been no intimation during the trial that defendants carried liability insurance. As qualifying the bill of exceptions, plaintiff (not in the presence of the jury, however) was permitted to show that defendants carried a liability policy protecting them in the instant case to the extent of $5,000 for any one person and $10,000 for any one accident, and that the attorneys representing defendants had been employed by the insurance company to conduct the defense. Qualification of the bill also shows the following:

"* * * In the argument by Mr. Russell, the attorney for the insurance company, before the jury, he made repeated statements of the following nature: `I feel Mr. Hankinson should not be called on to pay Lavallee.' Again: `Frankly, I don't see why Mr. Hankinson should be called on to pay Mr. Lavallee under the circumstances of this case.' Again: `Mr. Lavallee is asking Mr. Hankinson to pay him for his injuries.' These statements, and others of a like nature, were made at different times during the argument which Mr. Russell was making to the jury, and a similar statement was made by Mr. Russell at the time the objection which plaintiff's counsel made was advanced."

Exception was at once taken to the statement of plaintiff's counsel; the jury retired, and motion to declare a mistrial presented. The motion was overruled, bill of exceptions taken, and the question reserved, and properly presented here as a ground of reversal.

A general rule of long standing in this state is that the improper injection into a jury trial of the fact that the defendant is protected by insurance constitutes reversible error. Lone Star Brewing Co. v. Voith, 84 S. W. 1100; Harry v. Brady (Tex. Civ. App.) 86 S. W. 615; Beaumont Traction Co. v. Dilworth (Tex. Civ. App.) 94 S. W. 352; Levinski v. Cooper (Tex. Civ. App.) 142 S. W. 959; Fell v. Kinkle (Tex. Civ. App.) 154 S. W. 1070; City of Austin v. Gress (Tex. Civ. App.) 156 S. W. 535; Houston Car Wheel & Machine Co. v. Smith (Tex. Civ. App.) 160 S. W. 435; Carter v. Walker (Tex. Civ. App.) 165 S. W. 483; Coon v. Manley (Tex. Civ. App.) 196 S. W. 606; Debes v. Greenstone (Tex. Civ. App.) 247 S. W. 289; Tarbutton v. Ambriz (Tex. Civ. App.) 259 S. W. 259; Lange v. Lawrence (Tex. Civ. App.) 259 S. W. 261; Acola v. Petroleum Co. (Tex. Civ. App.) 261 S. W. 384.

In the early case of Levinski v. Cooper, above, a very careful inquiry into the doctrine supporting these decisions was made; and as a basis for the doctrine the following is quoted from the Missouri case of Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082:

"A litigant has a right to his own personality, and the opposing party has no right to have the consideration of his claim influenced or measured by any other standard, so far as individuality is concerned, than that afforded by the party of whom he complains. He cannot ask unliquidated damages of a good man, who may have injured him, and then substitute a bad man at the trial."

In all of these cases the issue of liability insurance was deliberately injected into the record, and it was held to be highly prejudicial and to constitute reversible error. There are a number of cases in which the appellate courts of this state have declined to reverse a judgment where this issue was injected in the case: Ware v. Jones (Tex. Com. App.) 242 S. W. 1022; El Paso Electric R. Co. v. Shaklee (Tex. Civ. App.) 138 S. W. 188; Cooper v. Hall (Tex. Civ. App.) 168 S. W. 465; Carter-Mullaly Transfer Co. v. Bustos (Tex. Civ. App.) 187 S. W. 396; Burnett v. Anderson (Tex. Civ. App.) 207 S. W. 540; El Paso Electric Ry. Co. v. Cowan (Tex. Civ. App.) 257 S. W. 941 (reversed on other grounds [Tex. Com. App.] 271 S. W. 79); Horton v. Benson (Tex. Civ. App.) 266 S. W. 213 (affirmed [Tex. Com. App.] 277 S. W. 1050); El Paso Electric Co. v. Perkins (Tex. Civ. App.) 292 S. W. 935; Northern Texas Traction Co. v. Woodall (Tex. Civ. App.) 294 S. W. 873 (reversed on other grounds [Tex. Com. App.] 299 S. W. 220).

It may not be difficult to find a sharp conflict in some of the decisions, if isolated expressions in the opinions alone are considered. Whether there is any real conflict in the decisions reached in the several cases we shall not undertake to determine. The cases in which reversals were not allowed contained one or more of the following elements: The issue was inadvertently or incidentally injected in the case, and the jury instructed not to consider it; it was injected in the heat of argument, was promptly withdrawn, and the jury instructed not to consider it; the jury were instructed not to consider it, and it did not appear to have had an appreciable effect on the verdict; it manifestly had no effect on the verdict; it arose in the voir dire examination of the jury, as to their interest in casualty insurance companies, and was held not improper, under Dow Wire Works Co. v. Morgan (Ky.) 96 S. W. 533.

Appellee contends that overruling the motion does not present reversible error upon substantially the following grounds: First, because the statement did not directly mention...