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

Decision Date19 October 1910
Citation131 S.W. 831
PartiesGULF, C. & S. F. RY. CO. v. DOOLEY.
CourtTexas Court of Appeals

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by P. E. Dooley against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, Wright & Wynn, Joseph Spence, Jr., and Chas. K. Lee, for appellant. Odell & Johnson, Hill & Lee, and O. T. Plummer, for appellee.

RICE, J.

This suit was brought by appellee to recover damages for personal injuries alleged to have been sustained by him in a rear-end collision between the passenger train upon which he was working at the time as a brakeman, and one of appellant's freight trains, at Belton Junction on January 20, 1905, and for which he recovered judgment in the sum of $6,000. It is conceded on the part of appellant that the company was at fault for the collision, and the only question urged by it both here and in the court below, to defeat a recovery was that appellee was not in fact injured thereby.

Without undertaking to give a résumé of the evidence, suffice it to say that appellee was the only witness upon whose statements the verdict could be predicated as to the fact of injury at the time of the collision, and at the trial the plaintiff rested upon the introduction of his evidence. In rebuttal, however, he offered testimony of his own physician who examined him shortly after the accident, and whose testimony confirmed and corroborated that of plaintiff relative to the character, extent, and permanent effect of the injuries complained of. But, on the other hand, appellant, by several eyewitnesses at the time of the occurrence, showed that plaintiff, while sustaining a fall at the time of the collision, was not in fact hurt; and by the testimony of four expert physicians, some of whom examined him shortly after the accident, showed that he was not seriously injured, and that the injury complained of was not permanent. Appellant likewise offered testimony to the effect that plaintiff, between the time of the accident and that of the trial, had been engaged in the performance of work which it contended he would have been unable to perform had he been injured as claimed; and there were other witnesses for appellant who testified to facts, acts and circumstances tending to show that he was feigning his injuries. So that the issue of whether plaintiff was injured at all or not, was clearly made and closely contested between the parties.

Among the reasons assigned for a reversal of this case is that one of the counsel for plaintiff during his closing argument appealed to the passions and prejudices of the jury, as well as made statements not supported by the record, which it is claimed wrung from them a verdict for plaintiff to which he was not in fact entitled under the evidence, but is contrary to the great preponderance thereof, and reflects, instead of the law and the evidence, the passions and prejudices of the jury aroused by his impassioned and unwarranted appeal. There were 21 bills of exception reserved by appellant during the closing argument. We will not, however, undertake to determine whether all of them are well taken, but will confine our discussion to such of them as we think are in violation of the law and transgress the rules so often laid down by our courts in this respect.

Among other things counsel in his closing address said: "The law says he [meaning plaintiff] is entitled to recover in this case. Through all the years of the future he is entitled to recover. Don't send him away from here disgraced, a malingerer among his fellow citizens. I would stay in the jury room until I rot and the ants carry me out of the window before I would do it. You are not going to do it. The gentlemen of the Santa Fé Railroad don't compromise his rights. He is entitled here to damages. Twelve or fifteen thousand dollars will not compensate him for his injuries and all the years he may live. It will not compensate him for all the injuries he has suffered in this case by liars who have come here to tell how he acted when he was not present here, but somewhere else. We deserve damages for that."

He further said: "Gentlemen, is it necessary to destroy the reputation, the character, and the standing of a citizen of Tom Green county by bringing men here to swear to facts that never occurred? Is it? Tom Green county of blessed memory! My father, when he was a young man, enlisted with Tom Green. Old Tom Green of blessed memory in the cause of the Confederacy and the delight of himself all the times of his life. I have always thought of Tom Green county, and can it be that the citizens of Tom Green county will permit liars to come and tear away the reputation of men even of the Sante Fé Railroad Company, with all its miles and millions at their backs?"

Again: "The issue in this case is whether the powerful influence of the mighty corporation will prevail or whether the individuals may have justice in contests with them."

Further he said: "To show you the power of the railroad and what a poor man is up against, or what any man is up against, there is a suit against the Sante Fé Railroad Company, and on trial they asked why we did not bring Dr. Braswell here. Well, we haven't got money enough to bring every doctor. They have known for a year and a half or two years that Braswell examined this man. If they wanted Braswell they could get him, if it is in Dooley's depositions." Said last remarks were excepted to because they were an appeal to the prejudices of the jury; that it was an effort to array a poor man against a rich, and to create an impression that this was an unequal fight, and that the plaintiff could not cope with the charged wealth of the defendant; and, further, because there was no evidence before the jury as to how long, if at all, the defendant had known what Braswell knew, or that it had ever known what his testimony would be; and defendant then and there requested the court to charge the jury to disregard these remarks, which it declined to do. Thereupon counsel for plaintiff, immediately upon the ruling of the court, stated to the jury: "They asked us why we didn't have Braswell. I tell them they have known for a year and a half that Braswell examined this man. They have the regular trains and the specials, they can bring them. It would break a prosperous man to compete with them in the trial of a case. Now, let us see about Braswell. They didn't bring Braswell here. Didn't bring the other doctor here." This was also excepted to with the request that the court instruct the jury not to consider it, which was refused.

Further, while Mr. Lee of counsel for appellant, in his argument to the jury, was commenting on the failure of the plaintiff to take the deposition or produce the testimony of Dr. Braswell, who had examined plaintiff at Cleburne, counsel for plaintiff was permitted over objection, to interrupt him with the question "Are you willing that I may read to the jury now the report made to me by Dr. Braswell as to Dooley's condition when he examined him?" It was urged that this question was improper, because such report was not admissible in evidence because the testimony had closed and the parties were only entitled to argue the case on the basis of the testimony that had been produced, or the failure to produce testimony, where such failure formed a legitimate basis for argument, and counsel for plaintiff had no right by such question to create in the minds of the jury the impression that Braswell's testimony would have been favorable to plaintiff, and had no right, in effect, as he did, to testify by this question that he had a statement from the said Braswell that was favorable to the plaintiff."

Again, while appellant's counsel Wright and Lee were each commenting on the absence of Mrs. Dooley's (plaintiff's wife) testimony, and calling the jury's attention to that fact, it having been shown that she was eight months advanced in pregnancy, which fact must have been known to plaintiff and his counsel at least for several months, and they could have easily taken her deposition; thereupon plaintiff's counsel was allowed to interrupt appellant's counsel with the question, "Are you willing to take Mrs. Dooley's testimony to-night, with a stenographer of your own selection?" Whereupon counsel for appellant excepted on the ground that such proposal was improper, and that, as the testimony had closed, plaintiff's counsel had no right to attempt to meet his argument on a legitimate deduction sought to be drawn from their failure to take her deposition at proper time, by such suggestion and question, and in addition requested the court to charge the jury to disregard such question and tender of said counsel, which the court declined to do. It appeared from the evidence that Dr. Linn, a resident physician, at the instance of plaintiff, had examined him in connection with the physician who did testify in his behalf, but said Linn was not used as a witness in the case. Counsel for appellant commented upon this failure upon the part of plaintiff to use the testimony of said Linn, and, during said closing argument, said counsel for plaintiff, replying thereto, said: "They have asked why we didn't take Dr. Braswell's (depositions) and did not put Dr. Linn on the stand. Gentlemen of the jury, if they will agree to it, I will let Dr. Linn, or whatever his name is, write the verdict in this case, will you?" (The last question "Will you?" being addressed to defendant's counsel). When these remarks were objected to by counsel for appellant as being improper, wholly unwarranted, and an abuse of the privileges of argument, and an unwarranted reply to the criticisms by defendant's counsel of the plaintiff for not putting Dr. Linn on the stand after they had caused him to examine the plaintiff, counsel for plaintiff replied: "I have practiced law 19...

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