Federal Underwriters Exchange v. Bickham, 3561.

• Decision Date: 06 January 1940
• Docket Number: No. 3561.,3561.
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. BICKHAM et al.
• Court: Texas Court of Appeals

136 S.W.2d 880

FEDERAL UNDERWRITERS EXCHANGE v. BICKHAM et al.

No. 3561.

Court of Civil Appeals of Texas. Beaumont.

January 6, 1940.

Rehearing Denied January 17, 1940.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Shelby County; T. O. Davis, Judge.

Suit by the Federal Underwriters Exchange, compensation insurance carrier, against Mrs. Ellie B. Bickham, individually, and as next friend for Joy Bickham and Ed Carroll Bickham, to set aside an award of the Industrial Accident Board in favor of the defendants for the death of Ed B. Bickham, employee, wherein the defendants filed a cross-action. To review an adverse judgment, the Federal Underwriters Exchange brings error.

Judgment affirmed.

Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, Levert J. Able, of Houston, and Benbow, Saunders & Holliday, of Dallas, for plaintiff in error.

Sanders & McLeroy, of Center, for defendants in error.

O'QUINN, Justice.

This is a workmen's compensation suit. W. G. Gray was the employer; Ed B. Bickham the employee; and Federal Underwriters Exchange the compensation insurance carrier. We shall refer to plaintiff in error as appellant, and defendants in error as appellees. On June 20, 1937, while engaged in the course of his employment as an employee of W. G. Gray, Ed B. Bickham received an injury resulting in his death. Mrs. Ellie B. Bickham, wife of Ed B. Bickham, deceased, individually, and as next friend for Joy Bickham and Ed Carroll Bickham, minor children of Mrs. Bickham and her deceased husband, Ed B. Bickham, duly filed claim for compensation with the Industrial Accident Board. On November 19, 1937, the Board made its final ruling awarding compensation to appellees. Appellant duly gave notice that it would not abide said award and filed this suit to set aside that ruling.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered for appellees for compensation at the rate of $20 per week for 360 weeks to be paid in a lump sum, one-third of said recovery being adjudged to attorneys representing appellees.

Appellant presents its first three assignments together. The first complains that counsel for appellees, while examining the jury panel, stated to said jurors in substance that appellant brought the suit to set aside the award of the Industrial Accident Board, and that the suit must be tried de novo, and that the burden of proof was upon the claimants to show they were entitled to recover, regardless of what it was, just to show that they were entitled to recover. That upon this statement being made, motion for mistrial and discharge of the jury was made by counsel for appellant because the statement of counsel for appellees was immaterial, irrelevant and highly prejudicial, and informed the jurors of the effect of the final award of the Industrial Accident Board on the claim, which motion was overruled by the court and was reversible error. This assignment is overruled. The statement did not inform the jurors what the award was, nor was the statement calculated to work injury to appellant.

The second assignment complains that the court committed reversible error in refusing to declare a mistrial and discharge the jury, because by reading to the jury certain portions of the appellees' answer and cross-action counsel for appellees had thereby informed the jury that an award had been made by the Industrial Accident Board in favor of appellees from which award appellant had brought this appeal. Appellant also incorporates into its bill of exceptions to the court's action in not sustaining its motion for mistrial, that it specially excepted to the allegations in paragraph 9 of appellees' first amended original petition and cross-action because said allegations were immaterial and irrelevant, were highly prejudicial and should be stricken, because they were conclusions of the pleader, allegations of law rather than fact, and were highly prejudicial, and the court committed reversible error in overruling its special exceptions. The court certifies the bill of exceptions with the qualification that the matters stated in the bill are certified only as the motion and objections of appellant. No facts are certified as having transpired or existed, merely the statement of counsel for appellant. We have examined the various portions of appellees' petition referred to by appellant and do not find anything that told the jury or was calculated to inform the jury what the award of the board was, but merely that an award was made. This certainly was not objectionable. No error is shown in refusing the motion to declare a mistrial.

The third assignment complains that the court erred in not sustaining its motion for a mistrial and discharge of the jury, because counsel for appellees by reading paragraph 10 of their first amended original petition to the jury, considered in connection with other stated portions and allegations in said petition, in which plaintiffs alleged why the compensation should be paid in a lump sum. Appellant insists that the pleading informed the jury that the award of the board was in favor of appellees, and also was prejudicial to appellant. A careful reading of the pleadings in both paragraphs 9 and 10 of appellees' petition fails to disclose facts plead by appellees that would support appellant's contention. The assignment is overruled.

Assignments of error 4 and 5 complain of the following argument of counsel for appellees in his opening argument to the jury:

"I wish, gentlemen, when you go out you would carry this instrument with you (referring to defendants and cross-plaintiffs' Exhibit No. R-20, same being the instrument attached to the written deposition of R. O. Kniveton and marked Exhibit A and attached to the interrogatories of said R. O. Kniveton to said such written depositions). The first thing up here at the top, over here, it don't even have any consideration over here; it is left blank, for the consideration of blank dollars. Now, you read that instrument, and then you read the next one, over here it says `The Delta Drilling Company, a Texas corporation; that is rubbed out and that is not in the other instrument either. That wasn't carried through because something fell through on that. The consideration over here is not named; that is the place there, not entered, and Kniveton signed every one of them, he was asked to put his name on every page so there wouldn't be any question about it being the same instrument he testified about. That is interlined; see if the other one is interlined. This one interlined there, and see if the other one is interlined. What else? Oh, gentlemen, the strongest detail in the whole case is right there—the 30th day of June, 1937, Kniveton wanted to get it back before the man's death but the facts, gentlemen, will not lie. We have been told that since we were boys and since we were children, and there it is, dated, and the notary public himself put his name in there, dated the 30th day of June, 1937, ten days after this man lost his life. If you will take that and hold it up between you and the sun I won't say you will, I will say I believe you can see it distinctly right there as the 30th day there. What else? Shows Kniveton joining—"

"I withdraw that and ask the court to instruct the jury not to consider what I said about the notary part as far as I am concerned."

"I don't care who put it there, it's there," * * * I don't care about arguing with you gentlemen, what the notary did. That's right; I told the court I didn't have any desire to argue that point. But I have a right to argue there that 30th day on this instrument. Now, that has been in Kniveton's possession; it has not been in our possession, it hasn't been in that good woman's possession yonder where she could get it to use it but it has been in Kniveton's possession. This is the copy that he had; that bears the 30th day of June, 1937, ten days after that boy was killed over there. Yet Kniveton says this agreement was entered into—let me say one thing then I won't take but a little more of your time. This instrument here, gentlemen, was never recorded at all; never was; never was put on record. My recollection —now, I could be mistaken about that but my recollection is that Kniveton testified in his deposition that this instrument was recorded, and my recollection is he said this one; whether he did or whether he did not, that has never been recorded."

The 4th assignment is that there was no evidence in the record that the signature referred to by appellees' counsel was the signature of any person; that there was no evidence to show the signature was that of J. Clifton Kemp, a notary, and that there was no evidence that the date alluded to was June 30th. An examination of the record discloses that the evidence did raise the issue of the instrument having been duly executed, and that same was executed before J. Clifton Kemp, a notary public in and for Caddo Parish, Louisiana. The record further discloses that at the time counsel for appellees made the argument complained of, he voluntarily withdrew that part of his statement that the notary had put his name to the instrument then in controversy, and requested the court to instruct the jury not to consider same, which the court did, and the presumption is that they obeyed the order of the court and did not consider that portion of the argument. The remarks complained against, if improper, were not of such a nature that the instruction could not cure same. However, a complete answer to the assignment is that the bill of exception itself recites that "despite anything in this bill above stated, there was evidence on the trial of said cause that J. Clifton Kemp was a Notary Public in and for Caddo Parish, Louisiana." Further, the question as to whether the instrument about which the argument was made had been executed on June 30, 1937, had strong support in the evidence that it was so...