Fox v. Gulf, C. & S. F. Ry. Co.

Decision Date24 January 1935
Docket NumberNo. 10050.,10050.
Citation80 S.W.2d 1072
PartiesFOX v. GULF, C. & S. F. RY. CO.
CourtTexas Court of Appeals

Chester H. Johnson, of Houston, for plaintiff in error.

Terry, Cavin & Mills and Rupert R. Harkrider, all of Galveston, for defendant in error.

GRAVES, Justice.

This brief but correct general statement is taken from the defendant in error's brief:

"Suit was instituted by plaintiff in error, individually, and as administratrix of the Estate of James H. Fox, deceased, against defendant in error for damages in the 10th Judicial District Court of Galveston County. For convenience, the parties will hereinafter sometimes be referred to as in the trial court.

"James H. Fox was the son of plaintiff, and at the time of his death on September 29, 1931, near Bay City, Texas, was a brakeman employed by defendant. Various grounds of negligence on the part of the defendant were alleged, and the statement of facts is exceedingly lengthy, consisting of over 300 pages, contained in two volumes. The case was submitted to the jury, and in response to special issues, the jury found in substance that the engineer operating the train upon which the deceased, Fox, was riding shortly prior to his death, did not cause the train to make an unusual and unnecessary jerk without warning; that defendant used ordinary care to keep its track between the rails and the intersection of the Missouri Pacific track, where deceased met his untimely and unfortunate death, in a reasonably safe condition; that the death of the deceased was the result of an ordinary risk of service, defined as one normally and ordinarily incident to the character of the work being performed; that the death of the deceased resulted from a risk which he assumed as a result of his employment, defined as one ordinarily incident to the service which an employee engages to perform, and such others as are open and obvious to him, or which he must necessarily have known in the ordinary discharge of the duties of service; and that the deceased's death was a result of, and due to, an unavoidable accident.

"Upon this verdict, judgment was rendered that the plaintiff take nothing by reason of her suit against defendant; the cause is properly before this court upon petition for writ of error."

In this court, through her first three propositions, the plaintiff in error assigns as prejudicial error the trial court's action as reflected from this bill of exceptions as qualified in the concluding paragraph:

"While A. G. Fish, a witness for defendant railway company, was testifying on cross-examination, and after he had testified as follows:

"`Q. You know your General Attorney, Mr. Wigley, mighty well? A. Yes.

"`Q. You are still employed by the Santa Fe? A. Yes.'

he was asked this question by Mr. Scruggs, attorney for plaintiff:

"`Q. You want Mr. Wigley to win this case, don't you?' to which defendant's counsel, Mr. Wigley, objected, stating: `That is highly improper.'

"Whereupon the court stated: `I don't want a remark like that in the court room. You are going too far. The jury will not consider that statement.'

"Whereupon Mr. Scruggs stated: `I withdraw the question, and in addition to that, if I said anything improper I want to apologize.'

"Thereupon the court stated: `I don't want apologies, and let the repetition out. If you try that again I will handle you. The court is going to be obeyed. I don't care whose side it is. When I make a ruling, the ruling is final, and I don't want the question repeated like you did.' * * *"

Qualification: "The statement of facts can not show the demeanor of Mr. Scruggs in the court room. I do not mean that he purposely carried on the way he did, but I do say it called forth the remarks to which he now takes a bill of exception. I have never worried about apologies from a lawyer who has to be rebuked by the trial Judge for conduct which the Judge considers unfair or not ethical. The attorneys of the Galveston Bar know that when they do these things, they are fined, and the fine is never remitted. Had Mr. Scruggs been an attorney of the Galveston Bar, instead of from Houston, I would have fined him several times during the trial of this case."

As thus qualified, it is not thought this bill reflects any reversible error; in the first place, it seems plain that the trial court's remarks contained no intimation in favor of or against the credibility of the witness, nor any comment upon the weight of any evidence, but only a rebuke of a clearly unjustified insinuation by such counsel against the witness' credibility and integrity as a fair and truthful one—that is, the plain imputation in this concluding question, following the abrupt reference to his being employed at that time by the appellee railway company and knowing its general attorney, Mr. Wigley, mighty well, that he wanted Mr. Wigley to win this case in any event—whether or not the facts justified it; an examination of the long detailed testimony the witness had just been giving fails to disclose any justification for such an insinuation or imputation, his testimony as a witness for the appellee apparently reflecting no other than a purpose to state the facts as he knew them; not only so, but that examination further discloses at least some justification for the trial court's apparent impatience over the matter, such for instance as the same counsel's prolonged and repeated interrogation of this witness as to whether or not he had considered Jas. H. Fox a competent brakeman—during which he had asked him flatly whether he wanted to minimize Mr. Fox—whereupon the court stopped the pillorying on the ground that he had already asked the same thing two or three times; furthermore, the court then proceeded to properly charge the jury that they were the exclusive judges of the facts proved, the credibility of the witnesses, the weight to be given the testimony, but must get the law of the case from the court, and, further, this: "If any juror or jurors shall have any knowledge of any fact * * * or of any witness, outside of that gained by the testimony from the witness-stand, he will not communicate said knowledge to his fellow-jurors, nor take the same into consideration. * * *"

In the situation thus presented, not only was the control of the extent to which the cross-examination of this witness might properly go a matter largely within the discretion of the trial court (Horton v. Ry. Co., 46 Tex. Civ. App. 639, 103 S. W. 467), but the following declaration of our Supreme Court in Sabine & E. T. Railway Co. v. Brousard, 75 Tex. 597, 12 S. W. 1126, is thought to be applicable; "When the remarks are considered in connection with the evidence of the witness, and the subsequent charge of the court, by which the jury were told that they were the judges of the weight to be attached to the testimony, and that it was not the province of the court to pass on that question, or to express an opinion as to the value of the testimony admitted, but they were to be controlled by their own views, we do not think the jury could have been improperly influenced by the remarks."

Next is presented assignment No. II, the material part of which is this: "The court erred in commenting to the jury and in making the statement in the presence of the jury, while the plaintiff, Mrs. Fox, was on the witness stand as a witness, substantially to the effect that the witness ought to be able to specify some month and some occasion just what amount deceased gave her, the said plaintiff, which comment was upon the weight to be given to plaintiff's evidence and calculated to lead the jury to believe that the court doubted the credibility of said witness."

The comment thus specified was this: "If she knows what he contributed, but if she does not, I can't. She ought to know how much she received in the last few months of his life."

The only exception taken to this statement of the court was that it went to the weight of the evidence; it was made while Mrs. Fox was testifying in her own behalf in response to questions of her counsel seeking to establish the measure of the damages she sustained from her son's death by showing what he might reasonably have been expected to contribute to her, had he lived; in answering such inquiries, she had testified that she could neither tell exactly how much her son had made, nor what specific amount he had contributed to her during the last year of his life; whereupon, her counsel then inquired whether or not he had been considerate of her, to which she replied: "We were just the best of pals. I loved him better than anything on earth and he loved me."

On objection, the court instructed the jury not to consider that question or answer, and, in connection therewith, made this statement: "I am trying to let the testimony in showing the element of damage. You can bring all the testimony you want on that."

Then followed the first above-quoted remark that is made the basis of this assignment.

Properly construed and considered in connection with the court's appropriate and proper instructions touching the credibility of the witnesses and the weight to be given their testimony, which has been quoted, supra, this court is of opinion that the remarks here criticized as being a comment by the court on the weight of the evidence cannot be reasonably held to have any such harmful effect; rather it would seem to have been a legitimate effort to hold the examination down to proper rules looking toward establishment in fact of what the mother's monetary damage had been by the loss of her son, rather than to permit her to speculate in...

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3 cases
  • Texas Emp. Ins. Ass'n v. Garza
    • United States
    • Texas Court of Appeals
    • October 27, 1977
    ...defense counsel. French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ); Fox v. Gulf C. & S. Ry. Co., 80 S.W.2d 1072 (Tex.Civ.App. Galveston 1935, error dism'd). Further, it is our opinion that the remarks complained of are of the type which could have been rende......
  • Trinity Universal Ins. Co. v. Jolly
    • United States
    • Texas Court of Appeals
    • November 27, 1957
    ...there is a showing of impropriety, coupled with probable prejudice and the rendition of an improper verdict. Fox v. Gulf, C. & S. F. R. Co., Tex.Civ.App., 80 S.W.2d 1072, er. Dism.; Texas Mexican R. Co. v. Bunn, Tex.Civ.App., 264 S.W.2d 518, er. ref., In Walker v. Texas Employers' Insurance......
  • Fream v. Geller
    • United States
    • Texas Court of Appeals
    • November 19, 1953
    ...a guest therein. A. C. Burton Company v. Stasny, Tex.Civ.App., Galveston, 223 S.W.2d 310, error refused; Fox v. Gulf, Colorado & S. F. Ry. Co., Tex.Civ.App., Galveston, 80 S.W.2d 1072, error dismissed, w. o. j.; Franklin v. City of Galveston, Tex.Civ.App., Galveston, 256 S.W.2d 997, error r......

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