Finck Cigar Co. v. Campbell, 2275-7406.

• Decision Date: 06 December 1939
• Docket Number: No. 2275-7406.,2275-7406.
• Parties: FINCK CIGAR CO. v. CAMPBELL.
• Court: Texas Supreme Court

133 S.W.2d 759

FINCK CIGAR CO. v. CAMPBELL.

No. 2275-7406.

Commission of Appeals of Texas, Section A.

December 6, 1939.

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

Action by S. L. Campbell against the Finck Cigar Company for damages growing out of an automobile collision. Judgment for the plaintiff was affirmed by the Court of Civil Appeals, 114 S.W.2d 348, and defendant brings error.

Affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.

Ray Bland, T. R. Boone, and Kilgore & Rogers, all of Wichita Falls, for defendant in error.

HICKMAN, Commissioner.

In the trial court, S. L. Campbell, defendant in error, recovered judgment against Finck Cigar Company, plaintiff in error, for damages resulting from a collision between his automobile and an automobile belonging to the Cigar Company, and being operated at the time of the collision by its agent. The judgment of the trial court was affirmed by the Court of Civil Appeals. 114 S.W.2d 348.

Only two questions are presented for decision. The first one arose out of the court's charge. Special Issue No. 35 was in this form: "Find from a preponderance of the evidence what amount of money, if any, if paid now in cash, would reasonably and fairly compensate the plaintiff, S. L. Campbell, for the injuries and damages sustained by him, if any, as directly and proximately caused by the negligence, if any, of the driver of the defendant's automobile in question. In answering you may take into consideration only such elements of damage, if any, as hereinafter enumerated and consider no more."

Following this issue the elements of damage were enumerated under lettered subdivisions a to j, inclusive. Typical of these lettered subdivisions is the first, reading as follows: "a—Loss of earnings of the plaintiff, S. L. Campbell, if any, which he sustained in the past as a direct and proximate result of such negligence, if any."

It will be observed that the above language limited the jury to the finding of such damages as were directly and proximately caused by the negligence, if any, of the driver of the defendant's automobile. The claim is that by thus restricting the scope of the inquiry the charge informed the jury of the effect of its answers to the issues on negligence and proximate cause. In support of this contention plaintiff in error relies principally upon the case of Grasso v. Cannon Ball Motor Freight Lines et al., 125 Tex. 154, 81 S.W. 2d 482.

There is a clear distinction between the charge in that case and the one in this case. What was there condemned was a general charge given in a case submitted on special issues, the effect of which was to inform the jury of the result of all of its answers, including those to the issues submitting the question of the plaintiff's contributory negligence. In this case the language of the special issue and the accompanying instructions at most but informed the jury that the defendant's liability for damages rested upon its findings in answer to the issue on negligence and proximate cause. It has been definitely decided that, to inform the jury of that which it already knows does not prejudice the rights of a litigant. McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Texas & Pacific R. Co. v. Edwards, Tex. Com.App., 36 S.W.2d 477; Lloyds Casualty Co. of New York v. Grilliett, Tex. Civ.App., 64 S.W.2d 1005, error refused; 41 Tex.Jur. 1206, § 342. The language complained of informed no juror of ordinary intelligence (which all jurors are presumed to possess) of anything which he had not already learned during the trial of the case, and the assignments presenting this question are, therefore, overruled.

The other question presented for decision is the contention that a witness brought information to the jury that the defendant was protected by a policy of indemnity insurance, and that the court erred in refusing to declare a mistrial when such information was given. The question arose in this manner: C. B. Sikes, a traveling salesman for the Cigar Company, was the driver of its car on the occasion of the collision. He sustained serious injuries at the time,...