Holliday Creamery Co. v. Haney

• Decision Date: 28 April 1926
• Docket Number: (No. 2673.)
• Citation: 283 S.W. 938
• Parties: HOLLIDAY CREAMERY CO. v. HANEY.
• Court: Texas Court of Appeals

283 S.W. 938

HOLLIDAY CREAMERY CO. v. HANEY.

(No. 2673.)

Court of Civil Appeals of Texas. Amarillo.

April 28, 1926.

Appeal from Wichita County Court; C. M. McFarland, Judge.

Suit by H. L. Haney against the Holliday Creamery Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Smoot & Smoot and J. R. Schoolfield, all of Wichita Falls, for appellant.

Kilgore, Montgomery & Carrigan, of Wichita Falls, for appellee.

JACKSON, J.

This is a suit instituted by H. L. Haney, appellee, in the county court of Wichita county, Tex., against the Holliday Creamery Company, appellant, to recover damages in the sum of $315 for injuries to his Ford coupé, alleged to have been caused by a collision with appellant's Ford truck.

Appellee alleges that the collision occurred at the intersection of Brook and Lucille streets in the city of Wichita Falls, as the result of the negligence of appellant, its agents and employés, in driving and operating the truck at a speed of about 40 miles per hour, which was in violation of the criminal laws of Texas; that he had the right of way over appellant's truck, which was proceeding west on Lucille street, while he was going south on Brook street, and was thus approaching the intersection from appellant's right; and that such negligence was the proximate cause of the damage to his coupé.

Appellant answered by general demurrer, special exception, general denial; pleaded contributory negligence against appellee in that he was approaching the intersection driving at a rate of speed in excess of the limit allowed by law, and that he was driving the car in a reckless, careless, and negligent manner, and failed and refused to attempt in any manner to stop his car after the discovery of the approach of appellant's car.

In response to special issues submitted by the court, the jury found that appellee was not guilty of contributory negligence in driving his car on the street at the intersection at the time in question, and that he had been damaged in the sum of $100.

On this verdict, judgment was rendered for appellee.

Appellant challenges, as error, the action of the trial court in permitting appellee, over his objection, to offer in evidence before the jury the ex parte affidavit made by the agent of appellant who was driving the truck at the time of the collision, and in refusing, on motion made by appellant, to instruct the jury to disregard, in their deliberation, the affidavit, and the conduct of counsel in offering it.

The bill of exception which is approved by the court without modification is:

"After it had been shown by the testimony, without dispute on the part of the plaintiff, that George Davis, who was driving the truck for the defendant at the time of the accident, was beyond the jurisdiction of the court, and could not be located by the defendant and used as a witness in court, the counsel for plaintiff offered in open court, and in the presence of the jury, a copy of a purported affidavit made by such George Davis shortly after the accident, and made at the instance of such counsel for plaintiff, which said copy of purported affidavit the counsel for plaintiff sought to have read to the jury; and such counsel for plaintiff exhibited such affidavit in the presence of the jury, and intimated by insinuations and innuendoes that it was the sworn statement of defendant's own witness, and invited and dared defendant and his counsel to agree to its introduction to the jury, if they wanted the testimony of such witness."

The court, on appellant's objection that the affidavit, or a copy thereof, was ex parte and inadmissible, excluded it, but refused to instruct the jury, on a proper motion, to disregard the affidavit or its contents or the offer thereof in evidence.

If it is uncertain or doubtful as to the inadmissibility of testimony, it may be offered by counsel for the purpose of securing a ruling on its admissibility, and thus preserve the rights of his client in the record, but the rules of evidence excluding such an ex parte affidavit, under the circumstances revealed by this record, are so elementary that we must presume that counsel for appellee knew when the affidavit was offered that it was inadmissible for any purpose.

"Everything having a tendency to prejudice or influence a jury in their deliberations which is not legally admissible in evidence on the trial of the cause should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be, or how carefully he may have been instructed by the court to not permit such incompetent matters to influence him, or have any bearing in ...