Kendrix v. Southern Pacific Transp. Co.

• Decision Date: 28 September 1995
• Docket Number: No. 09-93-274,09-93-274
• Citation: 907 S.W.2d 111
• Parties: E.B. KENDRIX, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee. CV.
• Court: Texas Court of Appeals

Page 111

907 S.W.2d 111

E.B. KENDRIX, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.

No. 09-93-274 CV.

Court of Appeals of Texas Beaumont.

Sept. 28, 1995.

Rehearing Overruled Oct. 18, 1995.

L. Brent Farney, Law Offices of George Chandler, Lufkin, for appellant.

Mainess Gibson, Gibson & Associates, Houston, Elizabeth B. Pratt, Mehaffy & Weber, Beaumont, for appellee.

OPINION

STOVER, Justice.

This is an appeal from a judgment entered upon a jury verdict. Appellant had filed a law suit as a result of a collision at a railroad crossing between appellant in his 18-wheeler and a Southern Pacific Transportation Company train. Appellant brings forth seven points of error.

On October 5, 1987, E.B. Kendrix was driving his 18-wheeler to the sawmill in Diboll to pick up a load of wood for his employer. Kendrix approached a railroad crossing and as he began to cross, a Southern Pacific northbound train had also approached the crossing and the train struck the 18-wheeler. Appellant and his passenger (Don Virnau, his brother-in-law) received injuries as a result of this collision.

The jury determined that the railroad crossing in question was extra-hazardous, found both Southern Pacific and Kendrix to be negligent, attributing negligence 60 percent to Kendrix and 40 percent to Southern Pacific. Accordingly, the trial court entered a take-nothing judgment. Appellant contends in his first point of error that repeated violations of the court's rulings on his motion in limine caused the rendition of an improper verdict.

Appellant filed his motion in limine prior to the beginning of any testimony. The record reflects the trial judge entered rulings on the motions in limine. The trial judge obviously granted appellant's motion in limine and as he admonished defense counsel during the trial to remember the motion in limine and "stay away from" prohibited areas. The trial judge said: "I've already made my rulings on all the items that have been presented to the court. I'll just ask both sides to remember the Motion in Limine." The trial judge's concern over violations of the appellant's motion in limine is further reflected when the judge tells defense counsel that "I don't think he [the witness] in any way, shape, form or fashion was thinking about violating a Motion in Limine. But since he did, I'm not going to let you do it, too." Both counsel for plaintiff and defendant were aware of the trial court's ruling.

Paragraph 1 of appellant's motion in limine precluded Southern Pacific from mentioning, directly or indirectly, whether Kendrix had received any collateral source benefits, including Worker's Compensation. This is the well-settled law of this State and every trial lawyer knows that the rules of evidence prohibit such references even absent a motion in limine. As stated in Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811, 813 (1945), the Supreme Court held:

[W]e are persuaded by the fact that any testimony which is immaterial, and tends to becloud the issues and confuse and mislead the jury, is prejudicial in its effect. Such was the holding in Barrington et al. v. Duncan, 140 Tex. 510, 169 S.W.2d 462, and Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962. It is ordinarily error for plaintiff to mention the fact in the presence of the jury that the defendant is insured against the liability which he is seeking to establish, or that he has no protecting insurance. For the same reason it is error to refer to the fact that the plaintiff is protected by some form of insurance. It is improper in either case because such fact is irrelevant and immaterial, and is calculated to work injury. Rojas et al. v. Vuocolo, and cases there cited.

Here, the words "worker's compensation" were not inadvertently uttered by a witness on the stand, they were directly injected by experienced defense counsel:

Q Do you know what he [Kendrix] was doing during that period of time?

A His treatment at that time was being directed by the insurance company.

Q What insurance company?

A I don't know.

Q You mean his Worker's Comp. insurance company?

Appellant's counsel immediately requested permission to approach the bench. Defense counsel proceeded with cross-examination after an off-the-record discussion and no instructions were given to cure the violation. Appellant formally moved for a mistrial on the grounds of this violation of the motion in limine and other misconduct. Recognizing the prejudicial impact of defense counsel's interjection of "Worker's Compensation" into the trial, the trial judge did not rule decisively, but decided to follow Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949), and Burdick v. York Oil Co., 364 S.W.2d 766 (Tex.Civ.App.--San Antonio 1963, writ ref'd n.r.e.), and advise defense counsel of possible "serious consequences" by stating he was carrying the motion for mistrial with the case, however, the trial judge never granted appellant any trial or post-trial relief from such motion.

On the final day of the trial defendant's attorney called plaintiff, E.B. Kendrix, to the stand and the following interrogation occurred:

Q You heard your brother-in-law, Don Virnau, testify that, and he's the only guy that really was where you were and could see what you could see, basically, correct?

A Yes, sir.

Q And he testified that in his opinion, the railroad was--

A He testified what?

Q That in his opinion, the railroad was one hundred percent at fault?

A Yes, sir.

Q Isn't it true that Mr. Virnau sued you and your employer claiming you were at fault in this accident?

A No, sir.

[PLAINTIFF'S COUNSEL]: Your Honor, may we approach?

THE COURT: All right. I sustain the objection.

It cannot be said that the defendant attorney was not aware of the motion in limine because he attempted to explain his question to the court by saying:

Here is the thing. They asked about prior suits in which he was involved claiming some sort of claim or element of injury. That's not what we're getting at. This impeaches this plaintiff's story and all of their witnesses' story and their lawyers' story entire theory of the case. It's offered solely for impeachment.

We conclude defense counsel improperly, and in violation of the motion in limine, told the jury that appellant's brother-in-law sued appellant for injuries from the same collision. Paragraph 4 of appellant's motion in limine prohibited Southern Pacific from mentioning, directly or indirectly, any prior or subsequent suits brought in connection with this collision. As noted, the appellant's brother-in-law, a Mr. Virnau, was a passenger in the truck Kendrix was driving when hit by the train. There was no evidence that Virnau had ever sued or alleged that Kendrix was in any way at fault in the wreck.

Appellant's counsel promptly objected, preserved the error and presented specific grounds for a ruling. The trial judge offered to give an instruction, which was declined by appellant's counsel. Appellant obviously felt that no instruction could mitigate the inescapable conclusion that Don Virnau, Kendrix' brother-in-law, blamed him and not the railroad for the collision. The question was so improper because the witness, Virnau, testified by deposition that the railroad was one hundred percent negligent in the case. The defense attorney was well aware that Mr. Virnau was unable to testify in this case because of a health problem.

The allegation that Mr. Virnau filed suit against Mr. Kendrix was totally immaterial and strongly prejudicial. No instructions could cure the improper impression this allegation left on the minds of the jurors. The jurors, who knew that Mr. Virnau was probably in the best position to see who was at fault, were left with the impression that Mr. Virnau sued Kendrix because he felt Kendrix was at fault for the collision. Furthermore, the jury could believe that Mr. Virnau did not testify live, not because he was ill, but because he would testify against his brother-in-law.

We conclude this caused the rendition of an improper verdict by improperly impeaching Kendrix with false hearsay of a relative who purportedly ascribed causation to the appellant. This was such a blatant violation of the rules of evidence as to alone necessitate a new trial.

The question was so prejudicial that before the appellant's attorney could object, the court had already sustained the objection. The court, obviously, was well aware that this was in violation of the motion in limine and highly prejudicial to the appellant, injecting this issue where the matter of comparative negligence was to be submitted before the jury. The appellant's attorney made a motion for mistrial. The trial court denied the motion.

In Cody v. Mustang Oil Tool Co., Inc., 595 S.W.2d 214, 216 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.), the court held:

A judicial proceeding must be conducted with decorum and due respect for the rulings of the court. Justice Pope discussing a motion in limine in Burdick v. York Oil Company, 364 S.W.2d 766 (Tex.Civ.App.--San Antonio 1963, writ ref'd n.r.e.), said:

A motion in limine to exclude anticipated evidence may be presented to the court. The practice is approved in Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 560, overruled on other points in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277. When the court has ruled on a point, the same evidence should not again be offered in the presence of the jury.

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The presentation of excluded matter to the jury by suggestion, by the wording of a question, or by indirection, violates professional standards and counsel's duty to the court. Canon 19, State Bar Rules, 1A Vernon's Tex.Civ.Stat., p. 236.

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There is a duty upon the court to rule decisively. McLellan v. Brownsville Land & Irrigation Co., 46 Tex.Civ.App. 249, 103 S.W. 206. When error creeps into the record, the court should...