Houston Fire & Cas. Ins. Co. v. Ford

• Decision Date: 07 June 1951
• Docket Number: No. 6537,6537
• Citation: 241 S.W.2d 158
• Court: Texas Court of Appeals
• Parties: HOUSTON FIRE & CASUALTY INS. CO. v. FORD.

Page 158

241 S.W.2d 158

HOUSTON FIRE & CASUALTY INS. CO. v. FORD.

No. 6537.

Court of Civil Appeals of Texas, Texarkana.

June 7, 1951.

Rehearing Denied June 28, 1951.

Strasburger, Price, Holland, Kelton & Miller, Dallas, Guinn & Guinn, Rusk, for appellant.

Fulmer & Fairchild, Nacogdoches, for appellee.

LINCOLN, Justice.

This is a compensation case. The jury found total disability for 200 weeks at the compensation rate of $24.23 per week and judgment was entered accordingly. Hence this appeal. Eight of the ten points of error presented on this appeal are directed against arguments of appellee's counsel, Mr. Fulmer.

The bill of exception reveals that Mr. Fulmer opened the argument for appellee wit a few preliminary remarks, among which he said that 'we have done the best we can and what we have to say merely should be to sum up what has already happened.' He then proceeded with the following remarks: 'You have a set of facts that will control in your mind and nothing I say or opposing counsel says should influence you unless we enlighten you on some. * * * Any good lawyer who prepares his case knows more about the facts before he starts than the jury when it is over. Everything the jury heard. He prepares his case and no doubt he picks up evidence on the outside of the record that you never heard of.' Thereupon Mr. Strasburger, attorney for appellant, objected to the remark 'no doubt he picks up outside the record.' The objection was overruled.

We do not think any portion of the foregoing argument was improper. They appear to be merely introductory statements of counsel entering into the argument on the issues submitted. His telling the jury that the facts in evidence should control their deliberations and that nothing counsel on either side says should influence them unless they are of an enlightening nature would negative any intention on the part of Mr. Fulmer to go outside the record. When he said that any good lawyer who prepares his case picks up evidence outside the record that the jury never heard of, he was, perhaps, making a useless, but nevertheless, a harmless remark. The statement would apply equally to counsel for both sides and we do not see how a jury would reasonably interpret the statement as beneficial to one and detrimental to the other. It will be observed that no part of the foregoing remarks were objected to except that specifically indicated.

Immediately following, however, Mr. Fulmer withdrew the remark objected to and undertook to explain that what he meant was that the court in ruling on evidence does not admit everything offered to them. He, Mr. Fulmer, might have his opinion about it. Mr. Strasburger thereupon objected to counsel basing his opinion on evidence that was not admitted, and moved that it be stricken. The court thereupon instructed the jury to 'take the evidence heard.'

Mr. Fulmer then said, evidently addressing the jury, 'based upon what you heard. I have a different conclusion.' There was no objection to this last remark. Appellant takes the position that Mr. Fulmer was telling the jury he had evidence outside the record which supported appellee's case, but we are unable to add such innuendoes to Mr. Fulmer's remarks. Mr. Fulmer did not tell what was his opinion, he merely stated that he had one. It could hardly be presumed that an attorney in a case would not have an opinion, and we think that would be nothing new to any jury in this country. He did not urge the jury to take his opinion as evidence, but said that his conclusions were based upon what the jury had heard. The court's instruction to the jury to 'take the evidence heard' was sufficient to cure any error resulting from the argument. We overrule appellant's first point of error.

The second point urges error in the following remarks by Mr. Fulmer:

'You can appreciate I am interested. You know Mr. Fairchild and me are going to receive one-third of the judgment you render. It has been proved and I think you will agree where work has been done, you have to go on to the other.'

Appellant objected to these remarks and moved that they be stricken and that the jutry be instructed not to consider them. The bill of exception shows that the court made no ruling and that there was no further request on the part of appellant. R.S. of Texas, Art. 8306, Sec. 7d, Vernon's Ann.Civ.St. art. 8306, § 7d, authorizes a compensation claimant to contract with his attorney for an attorney's fee not to exceed one-third of the amount recovered. Said statute further provides that the fee shall be fixed and allowed by the trial court, in which the matter may be heard and determined; that in fixing and allowing the attorney's fee the court must take into consideration the benefit accruing to the beneficiary as a result of such services. It is necessary that the plaintiff's pleading make proper allegations regarding the attorney's fees, and it is not error to read such portion of the pleading to the jury. Employers Liability Assurance Corp. v. Sims, Tex.Civ.App., 67 S.W.2d 445, error refused. Before the court may pass upon the issue evidence is required. Evidence was admitted without objection showing the character of services rendered by appellee's counsel and that his attorneys would receive as their fee one-third of the total recovery. The appellee made allegations and facts were in evidnce upon the issue of a lump sum recovery. The issue was submitted to the jury and the jury answered favorably to appellee thereon. Telling jurors what they already know cannot be harmful. 41 Tex.Jur., p. 1206; Lloyds Casualty Co. v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ refused; Lucey v. Dedman, Tex.Civ.App., 21 S.W.2d 546, writ dismissed; Ft. Worth & D. C. Ry. Co. v. Kiel, Tex.Civ.App., 195 S.W.2d 405, error refused n. r. e. The point presented by appellant does not consider these phases of the question. The ground appellant urges is that the argument was an appeal to the jury to give appellee a liberal verdict because his attorneys were going to get one-third of it. That they were to get that portion was obvious in the statement, as it was in the pleadings and the evidence. But the remark was also a frank admission of Fulmer that he had a personal interest in the case, thus leaving the way open for the jury to discount anything he might say. Appellant also urges that 'Nothing is better settled in Texas than that it is improper to inject the question of attorney's fees into a case,' and cites White Cabs et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200. The case is not in point, because it had to do with a suit for damages arising under the common law action for negligence, a rule that could be supported by many decisions. But this case appears rather to be ruled by King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855. The second point is overruled.

Mr. Fulmer made the following argument, referring to appellee: 'Even the unfortunate thing shown with a defect with the eyes and it has been unfortunate for them to be among-they are not in the destitute group, but unfortunate in a financial way. Yet he has a good family and loves them as we do and has got as much right in this suit as anybody would be, to be protected, as Mr. Strasburger in Dallas enjoys.' Mr. Strasburger objected, stating, 'it is improper to argue about 'destitute or poverty' as improper and we ask that it be stricken.' The court overruled the objection.

Appellant urges that this argument constituted an appeal to a sympathetic consideration of appellee's case because he had been and was 'unfortunate in a financial way.' As already pointed out evidence was introduced to show that appellee's financial condition was bad and that manifest injustice and hardship would result unless a lump sum was awarded. The argument is to be distinguished from that in Security Union Insurance Co. v. Alsop, Tex.Civ.App., 1 S.W.2d 921, cited by appellant, for the reason that in the case at bar there was no comparison of appellant's more favorable financial resources with those of appellee. The last sentence of the foregoing argument may border upon impropriety, at least it is misplaced and unnecessary, and particularly the reference to Mr. Strasburger. But the objection did not go to that, it only went to the portions of the foregoing quotation relating to the fact that appellee was unfortunate in a financial way. It was not improper for appellee's counsel to argue to the jury the financial necessity of appellee from the standpoint of his claim for compensation to be paid in a lump sum and upon the issue of manifest hardship and injustice to him unless that was done, upon all of which evidence had been introduced. King v. Federal Underwriters Exchange, supra; Gulf Casualty Co. v. Fields, Tex.Civ.App., 107 S.W.2d 661, writ dismissed. We do not think it can be considered as an appeal to sympathy, nor prejudice, nor that it was inflammatory, nor that it constituted a comparison with the more favorable financial condition of appellant or its attorney, Mr. Strasburger. Appellant's third point is overruled.

Appellant introduced as witnesses Henry Payne and O. L. Payne, partners of O. L. Payne Lumber Company, appellee's employer and the insured. Their testimony shows that checks for compensation payable to appellee were sent by appellant to the employer for delivery to appellee. Some of said checks were so delivered. In the meantime the employer received a notice of injury from appellee's attorneys. Upon receipt of such notice they returned the undelivered checks to the appellant. On direct examination of O. L. Payne, appellant's counsel asked the questions and obtained the answers, to-wit:

'Q. Does the outcome of this suit affect your finances? Does it affect you financially? A. It certainly does.

'Q. In what way? A. The more claims we have the higher the insurance and the less claims we have it reduces the insurance premiums.

'Q. Who eventually pays whatever judgment...