Davis v. Hill

• Court: Texas Supreme Court
• Writing for the Court: Speer
• Citation: Davis v. Hill, 298 S.W. 526 (Tex. 1927)
• Decision Date: 12 October 1927
• Docket Number: (No. 811-4836.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: DAVIS, Agent, v. HILL.

298 S.W. 526

DAVIS, Agent, v. HILL.

(No. 811-4836.)^*

Commission of Appeals of Texas, Section B.

October 12, 1927.

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

Action by Mrs. Alda Hill against Walker D. Hines, Director General of Railroads, and another. By amended petition plaintiff prosecuted the action both for himself and for the use and benefit of others. One Payne, Agent, was substituted for the named defendant, and thereafter James C. Davis, Agent, was substituted for Payne. Judgment for plaintiff for her own benefit against the named defendant was affirmed by the Court of Civil Appeals (291 S. W. 681), and said defendant brings error. Affirmed.

Terry, Cavin & Mills, of Galveston, and Nat Harris, of Waco, for plaintiff in error.

J. A. Kibler and Tom Hamilton, both of Waco, for defendant in error.

SPEER, J.

This is an action by Mrs. Alda Hill, surviving widow of G. E. Hill, deceased, against the Director General of Railroads and the Gulf, Colorado & Santa Fé Railroad Company for the recovery of damages for negligence causing the death of her husband. The case has been several times tried and appealed, the last appeal, from which this writ of error was sued out, being reported in 291 S. W. 681.

The writ of error was granted to review those assignments of error by the railroad and its director, complaining of the argument of counsel for plaintiff.

First, it appears that counsel for plaintiff in his opening argument to the jury, used the following language:

"It looks to me, gentlemen, and I am warranted in saying it, that that man's testimony [Ferguson, a witness for the defendants] was made out of whole cloth from start to finish. If that is true, gentlemen, there has been an influence working in this case that was not proper. * * *"

And:

"Now, let's see some of the things that this witness Ferguson says: He, it seems like — I don't know who is responsible for it, but it just seems like somebody connected with the railroad company were not willing to let him attend so that the fellow could testify in this case this time in person. * * *"

The defendants objected to the argument because the same was "improper, unwarranted, and prejudicial, and there was no fact in evidence to justify it." The objections were overruled.

The valuable right of counsel to argue his case should not be so restricted as to deprive him of the right to state fully his version of the testimony and the credibility of the witnesses in the light of all the circumstances. There was such conflict in the testimony and circumstances in this case that amply justified counsel for plaintiff in his conclusion that the testimony of the witness Ferguson was untrue. And if, as stated by counsel, such was the case, there is room for the further conclusion there had been some improper influence. As stated by the Court of Civil Appeals, this witness was, at the time of the trial, and had been for a number of years, in the employ of the railroad company. The general claim agent of the company had talked with Ferguson and knew his version of the facts of the case since shortly after the suit was filed in 1919, yet he was never called as a witness by deposition or in person until 1924, after the case had been tried four times. Upon the last trial the witness did not appear and testify in person, but his deposition was used. He had testified in person upon a former trial. We agree with the Court of Civil Appeals that counsel's charge was not an unfair criticism of the witness or of the railway company, but was entirely within his rights under the record.

Another bill discloses that, while counsel for plaintiff was making his closing argument, he spoke as follows:

"In counsel's argument, he did just as I told you he would, and jumped onto our witness King. He suggested that we had not brought anybody from Limestone county to prove that Mr. King had a good reputation, and, in corroboration of his witness Ferguson, he suggested that Mrs. Ferguson was not telling the truth, he asked why we had not brought some witnesses from Johnson county to establish that fact. My reply to that, gentlemen, is that there is a limitation, sometimes, on a party, when they are trying to carry on a lawsuit that keeps them from doing everything that they might do by way of finance. It might be, gentlemen, that we might have had a cloud of witnesses here from Limestone county, to prove that Bob King, at least, is an ordinary respected citizen in the community where he lives, and we might have had some witnesses here from Johnson county to prove what character of man this man Ferguson is, if we had been financially able to do that. That is my reply to counsel's suggestion with reference to both of those witnesses. It seems like they were able to bring witnesses here by the clouds, many of them, almost any kind of a witness they wanted, in order to establish any kind of a fact they wanted to establish. * * *"

Upon objection by counsel for defendants, the court remarked:

"Well, Mr. Kibler, I will have to be a little more strict with you now, because this is the concluding argument. There is not any evidence here about the financial ability of any of these parties, and I think that is out of the record. Just discuss the testimony now."

The court then instructed the jury not to consider the argument on part of counsel. To the bill is appended the following explanation:

"Mr. Harris, defendant's counsel, in his argument to the jury, used the following language: `And then he says there are 50,000 people in Limestone county, and only 8 or 10 or 12 came over here to testify to Bob King's reputation. Well, that is 8 or 10 or 12 out of 50,000 more than have come over here to testify to Bob King's good reputation. That is worthy of some consideration. This case has been tried six times, and yet they have not brought a single man from Limestone county who knew Bob King to testify that his reputation for truth and veracity was good. * * * In reference to the witness Ferguson, you are the judges of the credibility of his testimony and...