Ford v. Carpenter
| Decision Date | 05 January 1949 |
| Docket Number | No. A-1858.,A-1858. |
| Citation | 216 S.W.2d 558 |
| Parties | FORD v. CARPENTER. |
| Court | Texas Supreme Court |
Sam Hall and Ernest F. Smith, both of Marshall, and Curtis White, of Dallas, for petitioner.
Jones, Jones & Brian and C. A. Brian, all of Marshall, for respondent.
This is a suit by the respondent, J. B. Carpenter, plaintiff in the trial court, against his employer, R. G. Ford, the petitioner, and defendant in the trial court, who did business under the name of R. G. Ford Butane Equipment Company. The plaintiff sought damages for the loss of an eye which he alleged was caused by defendant's negligence in installing a defective bushing and nipple in one of the openings of a butane tank plaintiff was inspecting in his regular duties as inspector for defendant's butane and propane gas tanks. The tanks contained several outlets which were closed with temporary plugs after which water pressure of about 200 pounds to the square inch was applied through one of the openings. The inspection consisted of tapping around each plug opening while the tank was under high pressure. The tank plaintiff was inspecting when he was injured had a temporary cast iron bushing and nipple at one opening instead of the regulation brass or steel plug. While he was tapping around this opening parts of the bushing and nipple blew out striking him in the eye and face, causing the injury.
During the cross examination of plaintiff by defendant's counsel he was asked this question: "You carry an accident insurance policy?" Counsel for plaintiff immediately objected and requested that the jury be withdrawn. The trial court retired the jury and asked plaintiff's counsel if he wanted the jury discharged, to which counsel replied, Thereupon, the court sustained the objection, the jury was returned, and the trial proceeded. Upon a verdict convicting both parties of negligence proximately causing the injury, judgment was rendered for the defendant.
It appears that several months before the trial the defendant had taken the plaintiff's oral deposition, at which time defendant's counsel developed the fact that the plaintiff carried an accident policy and had received payments under it for the injury sustained by reason of the explosion. It also appears that the jury mentioned accident insurance during their deliberations. However, the reference was casually made and promptly rebuked by the foreman and other members of the jury, and occurred only after the jury had agreed upon all the issues except the one as to damages, which was never answered.
The plaintiff sought a new trial by reason of the injection of accident insurance into the case by counsel for the defendant, and also because the jury mentioned the accident insurance during their deliberations. The trial court refused a new trial, but the Court of Civil Appeals sustained the error assigned by the plaintiff relative to the injection of accident insurance by defendant's counsel, and reversed the judgment and remanded the cause. 212 S.W.2d 984.
The question propounded by defendant's counsel was as much a statement of fact as it was an inquiry, and was calculated to prejudice the rights of the plaintiff. It is ordinarily error for the plaintiff to mention the fact before the jury that the defendant has insurance to protect the liability for which he is sued, or that plaintiff has no protecting insurance. For a like reason it is also error for the defendant to refer to the fact that the plaintiff is protected by some form of insurance. In either case the reference is improper and is calculated to work injury. Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811; Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962.
Consequently, there can be no question that it was error for defendant's counsel to refer to the insurance. But the defendant contends that the plaintiff waived the error by refusing to request that the jury be discharged and a mistrial declared.
It is ordinarily the rule that a defendant waives this point if he fails to request a mistrial when the error is committed in the presence of the jury by plaintiff's counsel. Harrison-Wright Co. v. Budd, Tex.Civ.App., 67 S.W.2d 670; Russell v. Adams, Tex.Civ.App., 18 S.W.2d 189; Moore v. Norman, Tex.Civ.App., 137 S.W.2d 833. It is insisted, however, that the same rule should not be applied to a plaintiff for the reason that continuing the case would work injury to the plaintiff while such action would inure to the benefit of the defendant. In support of that contention the plaintiff cites the same case relied upon by the Court of Civil Appeals, Chapman v. Evans, Tex.Civ.App., 186 S. W.2d 827, 831, writ refused, want of merit, wherein it is said:
"* * * Ordinarily when a plaintiff leads a jury to believe the one being sued is protected by insurance a court may summarily declare a mistrial; this, in many instances, would be beneficial to a defendant, but it does not follow that when a defendant intentionally or inadvertently apprises the jury of such things that a plaintiff must move for a mistrial and thereby benefit the defendant."
That case is not controlling because there was another assignment of error sustained by the Court of Civil Appeals in its reversal of the judgment of the trial court sufficient to justify our action in refusing the application for writ of error for want of merit.
At any rate, we do not agree with the holding in the Evans case, nor that of this case, which applies a different rule to the plaintiff from that applied to the defendant. Continuing a case does not always work injury to the plaintiff nor inure to the benefit of the defendant. The converse may be true in many instances. Of course, the plaintiff cannot collect damages from the defendant against the defendant's will without first getting a trial and a judgment. But it is not always the plaintiff who desires a speedy trial or the defendant who is seeking delay. We cannot assume that the plaintiff's case is always meritorious or that the defendant is merely seeking to defeat or delay the payment of his just debt. As a court we must view all parties impartially and assume that they will proceed in good faith, and that the legal rights of each will be furthered, and in this sense benefited, by a fair and speedy trial. Moreover, it frequently happens that a defendant files a cross action for damages in which, for all intents and purposes, he becomes a plaintiff, while at the same time he retains his status as an original defendant. In such a situation, if a different rule should apply to the plaintiff, it would be difficult, if not impossible, to determine which of the parties should be favored by the rule.
Though there is no showing of bad faith here, it must be conceded that there may be occasions where a defendant will deliberately inject some prejudicial matter before the jury which will compel the plaintiff to ask for a mistrial or suffer the consequences. But that misconduct is not necessarily restricted to the defendant. The plaintiff may also resort to the same unfair tactics which will result in delay, perhaps in cases where it is to the advantage of the defendant to obtain a speedy trial. Those occasions, however, where either party shall engage in such unethical practices will no doubt be rare, and in most instances the infraction could be prevented by proper instructions from the trial court at the beginning of the trial, which, if violated, would lead to serious consequences. In this manner the rights of...
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