Jimmie Guest Motor Co. v. Olcott

• Decision Date: 22 March 1930
• Docket Number: No. 1895.,1895.
• Parties: JIMMIE GUEST MOTOR CO. et al. v. OLCOTT.
• Court: Texas Court of Appeals

Page 373

26 S.W.2d 373

JIMMIE GUEST MOTOR CO. et al. v. OLCOTT.

No. 1895.

Court of Civil Appeals of Texas. Beaumont.

March 22, 1930.

Rehearing Denied March 26, 1930.

Appeal from Harris County Court; R. W. Adams, Jr., Judge.

Action by D. P. Olcott against Jimmie Guest and another, individually and as copartners doing business as the Jimmie Guest Motor Company. Judgment for plaintiff, and defendants appeal.

Affirmed.

Vinson, Elkins, Sweeton & Weems, of Houston, for appellants.

Andrews, Streetman, Logue & Mobley, of Houston, for appellee.

O'QUINN, J.

Olcott brought this suit in the county court at law of Harris county against the Jimmie Guest Motor Company, a copartnership composed of Jimmie Guest and R. J. Bordelon, and against the partners individually, to recover $700, the alleged damages to his automobile in a collision with appellants' automobile at the intersection of La Branch street and Calhoun avenue in the city of Houston, on August 8, 1928.

The case went to trial on appellee's first amended original petition, in which it was alleged that the damage to his automobile was occasioned by the negligence of appellants' driver in approaching the intersection of said streets at a high, dangerous, and reckless rate of speed; in not keeping a proper outlook; and in not having the automobile under proper control. By trial amendment appellee alleged as an additional ground for recovery the failure of appellants' agent in charge of its car to surrender the right of way and failure to stop the car before entering the intersection of said streets.

Appellants answered by general demurrer, general denial, and plea of contributory negligence.

The case was submitted to the jury upon special issues, in answer to which they found:

(a) That appellants' agent in charge of its car failed to keep a proper outlook for other cars that might be crossing the street, that said failure was negligence, and that such negligence was a proximate cause of the collision;

(b) That appellants' agent in charge of its car attempted to cross La Branch street after appellee had entered upon the intersection of La Branch street and Calhoun avenue, that such attempt was negligence, and such negligence a proximate cause of the collision.

(c) That appellants' automobile, at the time of the collision and immediately before, was traveling at the rate of about twenty to twenty-five miles per hour, that such rate of speed was negligence, and that such negligence was a proximate cause of the collision (d) That at the time of the collision appellants' agent in charge of its automobile, in approaching the intersection of La Branch street and Calhoun avenue, did not have the car under such control as an ordinarily prudent person would have had under the same or similar circumstances, that such failure was a proximate cause of the collision.

(e) That the reasonable market value of appellee's car immediately before the collision was $850, and that its reasonable market value after the collision was $200.

(f) That appellee, as he approached the intersection of the streets in question, did not fail to yield the right of way to the driver of appellants' automobile.

(g) That appellee, as he entered upon the intersection of the streets in question, was driving his car in excess of twenty miles per hour, but that such rate of speed did not contribute as a proximate cause to the collision.

(h) That appellee, after he discovered appellants' automobile, could not have driven his car to the right and rear of appellants' car, and thus have avoided the collision.

(i) That appellee, under all the circumstances, as he approached and entered Calhoun avenue, did keep a proper outlook for other vehicles approaching from the right upon Calhoun avenue.

(j) That appellee's failure to turn to the left on Calhoun avenue after he discovered the approach of appellants' car was not negligence.

(k) That appellee's failure to stop when he discovered the approach of appellant's automobile, and that the driver of appellants' automobile was not looking, was not negligence.

Upon the answers of the jury, the court entered judgment in favor of appellee against appellants for $650. Motion for a new trial was overruled, and the case is before us on appeal.

Appellants' first proposition is:

"Where a cause is being tried for damages to an automobile to a jury and an insurance company is defending in behalf of the defendant under a property damage policy, it is improper and highly prejudicial to the right of the defendants for a witness to voluntarily give testimony which informs the jury that the defendants are protected by insurance; and the defendants are entitled as a matter of law, upon motion duly and timely made, to have the jury discharged and a mistrial declared by the court."

The basis of this proposition is reflected by appellants' bill of exception, as follows:

"* * * While the witness, Miss Maw Q. Garther was on the witness stand testifying as a witness for the plaintiff, and while on cross-examination, was asked the following question by counsel for defendants:

"Q. `You spoke about making a statement while ago. Is that the statement you have reference to?'

"And the witness inadvertently, and without knowing the effect of her answer, answered as follows:

"A. `Yes, sir. I made that to the insurance adjuster.'

"Whereupon Counsel for defendants then and there in open court requested the court to discharge the jury and declare a mistrial in this cause for the reason that the witness had stated that an insurance adjuster had taken the statement from her and when the question of defendants' counsel did not call for such an answer, whereupon, upon instruction of the court the jury was retired from the court room and after consultation between counsel for both parties and the court the jury was returned to the court room and jury box, whereupon the court, on his own initiative, and over plaintiff's objection, instructed the jury as follows:

"`Gentlemen of the Jury: In response to the question asked the witness on the stand she gave an answer as to who she gave the statement to. (Question and answer read) Gentlemen, the witness inadvertently answered the question without any intention of disregarding the law in the case. The jurors are sworn to try this case according to the law and the evidence, not according to who might or might not be a party.'

"`I am sure you will act in deference to that oath, that is the way you will decide it. I instruct you not to consider that answer, in arriving at your verdict you won't take that answer into consideration, either for or against either side.'

"Whereupon counsel for the defendants renewed his motion to discharge the jury and declare a mistrial for the reason that the witness had stated that the statement had been obtained from her by an insurance adjuster, and, therefore, got before the minds of the jury and indelibly planted in the minds of the jury that the defendant was fully covered by insurance and that any instruction by the court could not eliminate or erase from the minds of the jury the fact that the defendant would not have to pay any judgment that might be rendered herein but it would have to be paid by an insurance company.

"The court overruled said objection with reference to discharging the jury and declaring a mistrial, and forced and compelled the defendant to proceed with the trial before the same jury, to which action of the court the defendants in open court excepted, and now tenders this their Bill of Exception No. 1 and asks that this be approved by the court and allowed as a proper bill of exception herein."

Under this proposition, appellants insist that the court committed reversible error in not dismissing the jury and declaring a mistrial. We think the assignment should be overruled. As a general rule, in cases of this nature it is held that the improper injection into a jury trial of the fact that the defendant is protected by insurance constitutes reversible error. D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661 (writ denied). However, it is believed that in cases involving this question the reversal has been where and because the improper matter was deliberately injected into the trial, and where it was determined that same was prejudicial. On the other hand, where the question of insurance was inadvertently injected into the case, and the jury were instructed not to consider it, and it did not appear to have influenced the verdict, or manifestly had no appreciable effect on the verdict, it has been frequently held not to be a cause for reversal. D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661.

In the instant case the matter was brought out by counsel for appellants exhibiting a paper or document to Miss Garther, a witness testifying for appellee, and asked her if that was a statement she had made relative to the collision, and she replies: "Yes, sir. I made that statement to...