Federal Underwriters Exchange v. Bickham
| Decision Date | 03 December 1941 |
| Docket Number | No. 7708.,7708. |
| Citation | 157 S.W.2d 356 |
| Parties | FEDERAL UNDERWRITERS EXCHANGE v. BICKHAM et al. |
| Court | Texas Supreme Court |
Touchstone, Wight, Gormley & Touchstone and Benbow, Saunders & Holliday, all of Dallas, and Levert J. Able, of Houston, for plaintiff in error.
Sanders & McLeroy, of Center, for defendants in error.
This is a workmen's compensation case. The opinion of the Court of Civil Appeals will be found in 136 S.W.2d 880.
While counsel for the widow and minor children of the deceased employee was examining the jury panel on voir dire, he made the following statement: "This suit was brought by Federal Underwriters Exchange to set aside an award made by the Industrial Accident Board and it is tried `de novo' in this Court and the burden of proof is upon the claimants to prove the things necessary to entitle them to recover, regardless of what it is, just to show that they were entitled to recover."
Thereafter, the same counsel read to the jury a part of his petition, which reads as follows: "And if said award and compensation to which they are entitled were paid to them in a lump sum instead of weekly payments the cross-plaintiff, Mrs. Ellie B. Bickham, shows that she could and would, for the benefit of her and her minor children, take the proceeds thereof and invest the same for the use and benefit of her minor children in good interest bearing securities and from the income derived therefrom she would be able to rear and properly educate her said children."
Upon the making of the above statement, and the reading of the above paragraph of the petition, the insurance company's motion for a mistrial was denied. This is assigned as error. It is contended that the above statements had the effect of informing the jury that the Industrial Accident Board had decided the case in favor of the claimant, and that this constituted reversible error.
We recognize it as a sound rule that upon a trial de novo it is improper for counsel to disclose to the jury the decision previously made by another jury or board in the same case. 41 Tex.Jur. 779; Commercial Standard Ins. Co. v. McGee, Tex. Civ.App., 40 S.W.2d 1105 (syl. 11); City of Pampa...
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