Dallas Railway & Terminal Co. v. Bishop

• Decision Date: 27 June 1941
• Docket Number: No. 2164.,2164.
• Citation: Dallas Railway & Terminal Co. v. Bishop, 153 S.W.2d 298 (Tex. App. 1941)
• Parties: DALLAS RAILWAY & TERMINAL CO. v. BISHOP et al.
• Court: Texas Court of Appeals

Page 298

153 S.W.2d 298

DALLAS RAILWAY & TERMINAL CO. v.BISHOP et al.

No. 2164.

Court of Civil Appeals of Texas. Eastland.

June 27, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Action by R. E. Bishop against the Dallas Railway & Terminal Company for personal injuries sustained in a collision between a truck driven by the plaintiff and a street car operated by the defendant.The Texas Employers' Insurance Association intervened.From a judgment for the plaintiff and the intervener, the defendant appeals.

Reversed and remanded.

Burford, Ryburn, Hincks & Charlton, of Dallas, for appellant.

George Sergeant and Garland Armstrong, both of Dallas, for appellees.

FUNDERBURK, Justice.

R. E. Bishop, an employee of Quality Ice Company, having been paid, in accordance with a compromise agreement, the sum of $1,100 by Texas Employers' Insurance Association, compensation insurance carrier of said employer, for personal injuries resulting from a collision between an ice truck driven by said employee and a street car operated by Dallas Railway & Terminal Company, brought this suit against the latter to recover damages for said injuries.

Said Texas Employers' Insurance Association intervened, in its plea stating no cause of action, but referring to plaintiff's petition for such statement, and further alleging facts to show that of any amount of damages awarded plaintiff, intervener was subrogated to, and entitled to have paid to it, the sum of $1,100, plus other items, all aggregating (as alleged) $1,708.77.

Plaintiff alleged one act and two omissions, or failures to act, as negligence and proximate causes of the injuries and damages as follows: (a)The act of the defendant in driving its street car at an unlawful rate of speed within the limits of the city of Dallas, to-wit, in excess of 20 miles an hour.(2) The failure (omission) of the defendant, through its servants, to keep a proper lookout while attempting to cross the street intersection (intersection of paved Leonard Street with unpaved Guillot Street).(3) The failure (omission) of the defendant to give warning of its (the street car's) approach at said intersection.General damages to the amount of $40,000 and special damages to the amount of $558.92 were sought to be recovered.

The defendant, in addition to general and special exceptions, pleaded various acts and omissions of the plaintiff as contributory negligence.

During the progress of the trial, plaintiff, under leave, filed a trial amendment purporting therein to allege an additional ground of recovery based upon discovered peril.

The trial was by jury and fifty-eight purported special issues were submitted, all of which—material to the judgment rendered— were found in favor of the plaintiff.

From the judgment rendered thereon awarding plaintiff recovery of $9,500 and intervener $2,102.80 out of said amount, the defendant has appealed.

The parties, as in the trial court, will be referred to as plaintiff, defendant and intervener.

All but four of defendant's first 35 assignments of error relate to questions of misconduct of the jury and improper argument of counsel.In a brief of 206 pages, altogether 54 propositions under 58 assignments of error, are urged as grounds for reversal of the judgment.This statement is made not as a criticism of the manner of presenting the case, but rather as a reason why we cannot, within reasonable bounds, discuss or even mention many of the contentions of the parties.Independently of any of the questions of misconduct or argument it is our conclusion that the judgment must be reversed.In view of such required disposition of the casewe shall make only some general observations upon the subjects of misconduct and argument.

A question of whether a new trial should be granted because of misconduct of the jury usually involves three inquiries: (1) Did the alleged misconduct occur?(2) If so, was it material?(3) If material, does the record affirmatively show beyond a reasonable doubt that it was rendered harmless?The first inquiry involves a question of fact.The trial judge is the trier of the fact.He is the judge of the credibility of witnesses and of the weight of the evidence.His decision as to the occurrence, or not, of the alleged misconduct when the evidence, or want of evidence, does not, as a matter of law, conclude the issue one way or the other, is final.

The second inquiry—whether the misconduct be material— is a question of law.The test of materiality is whether it is of a nature under the circumstances reasonably calculated to prejudice the complaining party.In a case of doubt as to materiality, the decision of the trial court is conclusive.It so results because the appellate court cannot say that the decision is wrong.In a case where the misconduct is clearly material, in the opinion of the reviewing court, the decision of the trial court, upon the question of materiality, is not conclusive.

The third inquiry also involves a question of law.If misconduct be clearly material, there arises the presumption that it had a prejudicial effect.In such case, the presumption may be overcome only by an affirmative showing in the record that it was harmless—in other words, without harmful or prejudicial effect.

These propositions, so far as the nature of the subject will permit, are also applicable to arguments of counsel.They are discussed with more amplification, and with citation of authorities, in two opinions of this court, to which we here refer in lieu of further discussion.Williams v. Rodocker, Tex. Civ.App., 84 S.W.2d 556, andEstep v. Bratton, Tex.Civ.App., 24 S.W.2d 465.

Some highly improper and inflammatory argument is sought by the plaintiff to be excused on the ground that it was provoked by improper argument of defendant's counsel.In Taylor County v. Olds, Tex.Civ.App., 67 S.W.2d 1102, 1106, we quoted from 1 Michie's Digest, p. 921, as follows: "If counsel for one party pursues a line of argument not called for by the facts of the case and in itself improper and thereby invites a reply, the party so, through counsel, violating a proper course of procedure and the rules intended to secure the proper presentation of causes ought not to be heard to complain of the reply, and in such casesthe appellate courts will not reverse a judgment on an assignment of error based on such facts."A question of the application of this principle, which is one of invited error and estoppel, is here presented.Defendant's counsel in his argument said: "Now, I want to go into this case before I get through.It is the most diabolical thing that was ever presented in a court of justice in this country and everybody connected with it on behalf of the insurance company ought to be drummed out of this country.Here was a man * * *."At this point the presiding judge interrupted and admonished the jury to disregard the reference to "diabolical thing" and that certain people"ought to be drummed out of the country."Defendant excepted to the action of the court, but has presented no assignment of error based upon such action.The subject was not further mentioned by the defendant's counsel.We shall presume that the argument was improper.Whatever reasons, if any, defendant's counsel had for making the statement were not stated to the jury.Was defendant estopped to complain of argument by the attorneys of plaintiff and intervener, inflammatory in nature and castigating defendant for wanting to drum them out of the country?We think not.The conduct of all parties implied that the court's admonition to the jury had cured the prejudicial effects of the statement.The subject was forbidden to the defendant to discuss.The jury, under the admonition of the court, was forbidden to consider it.Plaintiff's and intervener's counsel in reviving it in their argument were, in effect, asking the jury to violate its duty not to consider the matter.The rule which permits the avoidance of a reversal on account of improper argument, on the ground that it is provoked by improper argument of the adversary party cannot, we think, be extended to cover such a case.

Intervener, through plaintiff as a witness, endeavored to prove certain things which the Insurance Company required plaintiff to do before it paid him.Evidence of such requirements had no relevancy to the issues in the suit and was calculated, we think, to influence wrongly the verdict of the jury against the defendant.

There was no error, we think, in the action of the court relating to the submission of the issue of unavoidable accident.The jury was directed "to let the form of your answer be whether `It was not an unavoidable accident' or `It was an unavoidable accident,' as you find the facts to be."The issue was submitted in this form: "Do you find from a preponderance of the evidence that the collision between the street car and ice truck on the occasion in question was not an unavoidable accident?"Only two answers to the question submitting the issue were possible—one, the equivalent of "yes"; the other the equivalent of "no".In many cases it has, in effect, been held that by such manner of statement of the question an affirmative or "yes" answer will be based upon a preponderance of the evidence.Obviously, the mere absence of a preponderance of the evidence to support an affirmative or "yes" answer necessarily requires a negative or "no" answer.If the jury answered "It was not an unavoidable accident" that would be an affirmative and the equivalent of a "yes" answer, and would import that it was based upon a preponderance of the evidence.If answered "It was an unavoidable accident" that would be a negative and the equivalent of a "no" answer.After all, then, the real question is whether or not the qualifying phrase "as you find the facts to be" had any nullifying or contradictory effect upon the previous requirement that an...