J. D. Wright & Son Truck Line v. Chandler

• Decision Date: 08 June 1950
• Docket Number: No. 12187,12187
• Citation: 231 S.W.2d 786
• Parties: J. D. WRIGHT & SON TRUCK LINE et al. v. CHANDLER.
• Court: Texas Court of Appeals

Page 786

231 S.W.2d 786

J. D. WRIGHT & SON TRUCK LINE et al. v. CHANDLER.

No. 12187.

Court of Civil Appeals of Texas, Galveston.

June 8, 1950.

Rehearing Denied June 29, 1950.

Strasburger, Price, Holland, Kelton & Miller and Hobert Price, all of Dallas, for appellants.

Leon Lusk, Helm & Jones, John L. Hill, Jr., and W. J. Kronzer, Jr., all of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee, J. H. Chandler, for the use and benefit of himself and his wife, Mrs. Bertha Chandler, to recover damages for injuries alleged to have been sustained by Mrs. Chandler in an automobile collision alleged to have been the result of the negligent operation of a truck driven by an employee of appellants, J. D. Wright, Sr. and J. D. Wright, Jr., doing business as the J. D. Wright & Son Truck Line.

The suit arose out of a collision which occurred in Waller County, Texas, in November of 1948, between a pick-up truck owned and occupied by appellee and his wife and a truck owned by J. D. Wright & Son Truck Line, and being driven at the time of the collision by one of its employees.

Appellee alleged that he and his wife were proceeding along Highway 290 in Waller County, Texas, in a careful and prudent manner, when their pick-up truck was struck from the rear by a truck owned by appellants, and being operated by one of their employees, who was acting within the scope of his employment. Appellee alleged numerous specific acts and omissions on the part of appellants and their driver, claimed to amount to negligence, which proximately caused the collision.

In their answer appellants alleged that their truck was being operated at a rate of speed and in a manner permitted by the laws of the State, but that appellee had failed to keep a proper lookout for appellants' truck and that he suddenly and unexpectedly brought his pick-up truck to a complete stop directly in front of appellants' truck and that, although appellants' driver did everything possible to avoid the collision, it was impossible for him to do so. They alleged that appellee failed to make a proper application of his brakes. Appellants alleged various acts and omissions on the part of appellee which amounted to contributory negligence and proximately caused the collision in question.

In answer to special issues submitted, a jury found, among other facts, that the driver of appellants' truck was operating his vehicle at an excessive rate of speed; that he failed to keep proper control of his truck or to make proper application of his brakes immediately before the collision. The jury found that the driver of appellants' truck discovered that appellee's pick-up truck and its occupants were in a position of peril prior to the collision and that they would not be able to extricate themselves from such position of peril; that said acts constituted negligence and were the proximate cause of the injuries sustained by Mrs. Bertha Chandler; and that appellee was not guilty of the acts of contributory negligence alleged by appellants.

Based upon the findings of the jury, judgment was rendered in appellee's favor for the sum of $20,000.

Appellants rely largely on the alleged error of the trial court in refusing to grant a new trial because of improper arguments by appellee's attorneys and the alleged fact that the amount of damages allowed on account of the injuries to Mrs. Chandler was grossly excessive.

The particular statement complained of by appellants in their first point of appeal is a statement by appellee's counsel in his argument to the jury, in which he is alleged to have vouched for the credibility of his witnesses by telling the jury that he himself had investigated the facts and had talked to the persons who knew the facts and that he knew what the true facts were and knew that he was on the right side and was entitled to win. Appellants contend that this statement was the unsworn testimony of appellee's counsel to the effect that he knew of his own personal knowledge after an investigation of the case that his side was entitled to win because they were in the right.

It is undisputed that the arguments complained of were not objected to or called to the attention of the court at the time they were made so that the court might instruct the jury to disregard the portion of the argument deemed improper. The argument, we think, could have been corrected by an instruction to disregard it, and the failure to object and move for an instruction to disregard it was, we think, a waiver of the alleged error, if any. City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649; Remirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; and Texas Employers' Insurance Ass'n v. Cooper, Tex.Civ.App., 194 S.W.2d 819.

It is a well-settled rule of law in this State that, in his argument before a jury, an attorney may, with propriety, freely discuss or comment on such facts as are in evidence or admitted in the pleadings, and that he may give his view of the evidence, explain and interpret it, and discuss its weight or probative effect or want thereof. 41 Tex.Jur. 769.

It is also a settled rule of law in this State that an attorney in argument may draw from the facts and circumstances in evidence any inferences and deductions that are reasonable and fair,-that is, the court may not restrict him to any certain view of the facts or the deductions to be drawn therefrom. This liberty of speculative deduction in presenting cases to juries is wide and counsel is permitted in his argument to state to the jury such facts as he in good faith draws from all the circumstances of the case, and what would be very likely to follow if such inferences should turn out to be correct. Moreover, counsel may ordinarily state to the jury all proper inferences from the evidence and draw conclusions therefrom in his own way of reasoning, although they may be illogical or improper. Further, he may argue any hypothesis supported by the evidence, even though there is evidence to the contrary. 41 Tex.Jur. 772; Marvin Drug...