J. H. Robinson Truck Lines v. Ragan, 11892.

• Decision Date: 24 July 1947
• Docket Number: No. 11892.,11892.
• Citation: 204 S.W.2d 662
• Parties: J. H. ROBINSON TRUCK LINES, Inc., et al. v. RAGAN.
• Court: Texas Court of Appeals

204 S.W.2d 662

J. H. ROBINSON TRUCK LINES, Inc., et al. v. RAGAN.

No. 11892.

Court of Civil Appeals of Texas. Galveston.

July 24, 1947.

Rehearing Denied October 9, 1947.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Elijah D. Ragan against the J. H. Robinson Truck Lines, Inc., and others to recover for personal injuries allegedly resulting from the negligent operation of the named defendant's truck. Judgment for the plaintiff, and the defendants appeal.

Judgment affirmed.

Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi (W. M. Lewright, of Corpus Christi, of counsel), for appellants.

Earl Cox and Wm. States Jacobs, Jr., both of Houston, for appellee.

CODY, Justice.

This is a personal injury suit, brought by appellee to recover damages resulting from the alleged negligent operation of a truck belonging to appellant, J. H. Robinson Truck Lines, Inc., by appellant Canorroe on the Houston-Galveston Highway on the night of February 15, 1946. Based on the jury's verdict the court rendered judgment for appellee against appellants for $40,000.

Appellants predicate their appeal on six points. Their first four points complain that, with respect to Special Issue No. 24— which was the damages issue—the court failed to affirmatively instruct the jury that the burden of proof rested upon plaintiff to establish all of the elements of his damages by a preponderance of the evidence. By their point 5 appellants complain of the court's refusal to give a certain admonitory instruction. By their point 6 they complain that the court erred in refusing to grant a new trial because of prejudicial argument by appellee's counsel, Mr. Earl Cox, in appellee's closing argument to the jury.

We must overrule appellant's points 1 to 4 inclusive. The damages issue read, in part, as follows: "What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence, will fairly and reasonably compensate the plaintiff, Elijah David Ragan, for the personal injuries, if any, sustained by him as a direct and proximate result of the collision between his automobile and the defendants' truck, taking into consideration the following elements of damages and none other:"

The issue then sets out elements "a", "b", "c", and "d". For present purposes we need only set out element "a" of the special issue as given: "(a) Such physical pain and mental suffering, if any, as the plaintiff Elijah David Ragan may have sustained in the past and until the trial of this cause as a proximate result of his injuries, if any."

It is appellants' contention that element "a" should have contained, in addition to the foregoing, words to make it read as follows: "(a) Such physical pain and mental suffering, if any, as you may find from a preponderance of the evidence the plaintiff * * *", etc.

Appellants' criticism misconceives the function served by the inclusion of the elements of damage in the issue. The issue is a complete one without the inclusion therein of the elements of damage. But in order to insure against the jury allowing compensation for injuries which are not recoverable, they are instructed to consider only the elements of damage specified. Such restriction is placed in the issue for the benefit of the defendant, as a limitation on the nature of damage that may be considered in awarding compensation. The issue as given was correct, and in standard form. See 13 Tex.Jur., 456-460. This brings us to the consideration of appellants' point 5.

Miss Billie Moon, a witness for appellants, testified as to the location of the flares with respect to the parked truck belonging to J. H. Robinson Truck Lines, Inc., which appellants' evidence showed the driver had set out when he left the truck some 15 minutes prior to the collision. In the closing argument appellee's counsel, Mr. Cox, made the following statements, and the following proceedings were had:

"Let's consider, first, this little lady, Miss Billie Moon, that counsel relies on so strenuously.—To test her recollection further, I asked her about the flare behind the truck; she was uncertain about that, she didn't know about the lights on the back of the truck. She was certain about a flare in front, but she was uncertain about any flare in the back of the truck, furthermore —

"Mr. Lewright (of counsel for appellants). We object to that statement. Miss Moon was not uncertain about the flare back of the truck. All she said was, after they drove up she looked to see if it was still there.

"The Court: I overrule the objection.

"Mr. Cox: She said, `I can't say whether the lights on the truck were burning or not. I am not positive there was a flare behind the truck.' I write shorthand and I wrote it down when she said it."

At the conclusion of Mr. Cox's argument, the following proceedings occurred:

"Mr. Lewright: In behalf of the defendants, we move the court to instruct the jury to disregard that portion of Mr. Cox's argument in which he said he wrote shorthand and had taken down the testimony of Miss Moon; and we also ask the court to inform the jury that they call Mr. Watkins (the court reporter), should they desire the testimony of Miss Moon, Mr. Burkett, or any other witness, and have him read it to them.

"Mr. Cox: It is agreeable with me to have the court instruct the jury to disregard my statement.

"The Court: We are not interested in what Mr. Cox said he took down. Gentlemen, don't consider that statement for any purpose in this case. I overrule the request about reading the testimony. We will wait until we get to that."

"Mr. Lewright: I except."

We overrule appellants' point 5, which complains of the court's refusal to instruct the jury that, should they so desire, in considering their verdict, they had the right to call the court reporter to read to them the testimony of Miss Moon so they might determine that her testimony was contrary to the unsworn testimony of appellee's counsel. The gist of the complaint is that the court refused to advise the jury, upon appellants' request, that if they wished they might have the court reporter read them Miss Moon's testimony in certain respects. Whether or not an admonitory instruction should be given is a question addressed to the court's sound judicial discretion. See Quanah, A. & P. R. Co. v. Eblen, Tex.Civ.App., 55 S.W.2d 1060, 1063, writ refused. Furthermore, it was not made to appear affirmatively that the jury was in disagreement as to the statement in question by Miss Moon. Rule 287, Texas Rules Civil Procedure, provides in part: "If the jury disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness' testimony on the point in dispute; * * *." Thus the language of the rule indicates that even where the jury is in disagreement as to the statement of a witness, and apply to the court to have same read to them, it would not be error for the court, in the exercise of a sound judicial discretion, to decline such request. See Standard Supply & Hardware Co. v. Christian et al., Tex.Civ.App., 183 S.W.2d 657 (writ refused).

Appellants' point 6 reads as follows: "The error of the trial court in refusing to grant appellants a new trial herein, because of the highly improper and prejudicial argument made by Mr. Earl Cox, one of counsel for appellee, in the closing argument of appellee herein to the jury, at which time Mr. Cox gave the jury his unsworn testimony that by the use of a magnifying glass (and one of which he then held in his hand and exhibited to the jury and then left upon the counsel table in the presence of the jury during the entire time of such argument, but which was never furnished to the jury for their use in the jury room during their deliberations upon their verdict), it could readily be seen that certain pictures, which had been introduced in evidence by appellants, disclosed that certain lights which were situated upon the back end of appellants' truck were not burning at the time the pictures were taken, such unsworn testimony being directly contrary to the sworn testimony of appellant Canarroe, the driver of the truck, and one of the material issues in the case having been whether such lights were or were not burning at the time such pictures were taken, and which unsworn and improper testimony directly influenced the jury in returning their verdict in this cause whereby they found that at the time of the accident, a few minutes prior to the time such pictures were taken, the lights upon the rear end of appellants' truck were not burning."

We overrule the point.

One of the grounds urged by appellee against appellants as actionable negligence was the alleged failure of appellant Canarroe, driver of the truck, to have lights on the rear thereof burning at and immediately prior to the time of the collision. Said appellant testified that, when he left the truck parked on the highway, which was some 15 minutes before appellee ran into it, all the lights with which it was equipped were burning. He further testified that when he returned, about 15 minutes after the collision, all of said lights were burning except for the tail-light and the left rear red clearance lamp, and that these had been knocked out and broken when appellee's car struck the rear end of the trailer. He further testified that defendants' (i. e. appellants') Exhibits A, B, G, and H, were pictures which were taken prior to the time that the wrecker arrived at the scene of the accident, which was only a few minutes after the accident; and that at the time said photographs were taken, all of said lights on the truck and trailer, except...