Humble Oil & Refining Co. v. Butler

• Decision Date: 22 January 1932
• Docket Number: No. 918.,918.
• Citation: 46 S.W.2d 1043
• Parties: HUMBLE OIL & REFINING CO. v. BUTLER et ux.
• Court: Texas Court of Appeals

46 S.W.2d 1043

HUMBLE OIL & REFINING CO. v. BUTLER et ux.

No. 918.

Court of Civil Appeals of Texas. Eastland.

January 22, 1932.

Rehearing Denied February 19, 1932.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Action by T. R. Butler and wife against the Humble Oil & Refining Company. From judgment for plaintiffs, defendant appeals.

Reversed and remanded.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, and Cox & Hayden, of Abilene, for appellant.

Scarborough, Ely & King, of Abilene, for appellees.

HICKMAN, C. J.

This suit grew out of the same accident as that involved in cause No. 938, Humble Oil & Refining Company v. D. C. Ooley et al (Tex. Civ. App.) 46 S.W.(2d) 1038, this day decided by this court. It was instituted by appellees T. R. Butler and wife, Beulah Butler, against appellant Humble Oil & Refining Company for damages for personal injuries sustained by Mrs. Butler in a highway collision, which occurred near Mulberry Creek on State Highway No. 1, between the cities of Abilene and Sweetwater. The appellant, by cross-action, brought in D. C. Ooley, driver and owner of the car in which Mrs. Butler was riding, seeking judgment against him for whatever amount, if any, judgment should be rendered against it; the theory being that, if it was guilty of negligence, such negligence was passive, and Ooley was guilty of active negligence warranting judgment over and against him. Mrs. Butler was a guest of the Ooleys, riding in the back seat of their car.

By the findings of the jury in answer to special issues, appellant was found guilty of negligence, which was the proximate cause of the injuries; both Mr. Ooley and Mrs. Butler were exonerated of contributory negligence, and the damages were assessed at $1,400. No questions are presented as to the correctness of the court's charge in any particular, and the only bills of exceptions relied on relate to the argument of counsel. In addition to the assignments relating to improper argument, there are presented assignments directed at the refusal of appellant's request for a peremptory instruction in its favor and assignments challenging the sufficiency of the evidence to support various answers of the jury to special issues.

There is no material difference between the testimony in this case and that in its companion case as to the facts and circumstances surrounding the accident. We shall not, therefore, discuss the assignments with regard to the sufficiency of the evidence to support the jury's findings of primary negligence and proximate cause, or of its findings exonerating the driver of contributory negligence. They are overruled on the authority of the companion case. The contention that the evidence convicted Mrs. Butler of contributory negligence is without merit. On the contrary, the overwhelming evidence supports the finding that she was not guilty of contributory negligence in failing to warn the driver. The undisputed evidence shows that he had been driving carefully and at a lawful speed.

There are many bills of exceptions complaining of the argument of counsel. The first bill which we shall notice complains of the following proceedings, which took place during the opening argument of one of the attorneys for appellee:

"Now let's get down and try to see whether or not Mr. Ooley was at fault, or whether or not the Humble Oil & Refining Company is to blame, as we contend that they were. There are great big, wide shoulders out there on that highway for people to park upon when it is necessary to stop a car, and the average man is presumed to know the law of this state that you shall not park upon the pavement —

"Mr. Leftwich: We except to the argument of counsel.

"The Court: Sustain the objection. Don't consider it.

"Mr. Leftwich: And we ask the court to instruct the jury—

"Mr. Scarborough: We except to the court excluding that argument, because our Statute —

"The Court: It is not in the charge. The court's charge contains all of the law the jury has.

"Mr. Leftwich: We except to counsel's remark that it is the statute, in the presence of the jury.

"The Court: Don't consider it.

"Mr. Ely: I withdraw it; that part of the statement, but I will say this, it is not for me to state the law, but that every man in the state is presumed to know the law—

"Mr. Leftwich: We except to the argument.

"Mr. Ely: Every man must know—

"Mr. Leftwich: We ask the court to instruct the jury not to consider it.

"The Court: Overrule the objection.

"Mr. Leftwich: We except.

"Mr. Ely: I am not telling you, under the court's instructions and on persistent objections of counsel, what the law is—

"Mr. Leftwich: We further object to that argument of counsel. We have got a right to make our legal objections and we object—

"The Court: All right.

"Mr. Leftwich: We ask the court to instruct the jury not to consider it.

"Mr. Ely: When they are through I want to proceed with the case.

"The Court: Proceed.

"Mr. Ely: I think he could make his objections quietly.

"Mr. Leftwich: We object to that remark of counsel about our making the objection.

"The Court: All right.

"Mr. Leftwich: We except."

This bill manifests error.

There are several bills of exceptions in the record complaining of argument of counsel to which objections were made for the first time in the motion for rehearing. We shall not set out all of this argument claimed to...