King v. Federal Underwriters Exchange, A-720.

• Decision Date: 16 January 1946
• Docket Number: No. A-720.,A-720.
• Citation: 191 S.W.2d 855
• Court: Texas Supreme Court
• Parties: KING v. FEDERAL UNDERWRITERS EXCHANGE.

191 S.W.2d 855

KING v. FEDERAL UNDERWRITERS EXCHANGE.

No. A-720.

Supreme Court of Texas.

January 16, 1946.

Rehearing Denied February 13, 1946.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit under the Compensation Act between Simpson King, employee, and the Federal Underwriters Exchange. To review a judgment of the Court of Civil Appeals which reversed a judgment in favor of the employee, the employee brings error.

Judgment of Court of Civil Appeals reversed and judgment of trial court affirmed.

Fulmer & Fairchild and R. W. Fairchild, all of Nacogdoches, for petitioner.

W. E. Stone, of Jacksonville, A. J. Thompson, of Nacogdoches, John T. Gano, of Fort Worth, for respondent.

ALEXANDER, Chief Justice.

This is a workman's compensation case. The judgment of the trial court, in favor of the employee, was reversed by the Court of Civil Appeals because of alleged improper argument of counsel for the employee.

The argument complained of and the rulings of the trial court thereon are as follows:

(1) "Mr. Fulmer (Counsel for employee): You see the significance of this where you were called on if you would give the same credit to a doctor you didn't know as you would to a local doctor. If you suggested you would pay more attention to Dr. Travis than you would to any other, you would have been stricken off and couldn't [have] served. They build the entire case around prejudice of a local doctor. No doubt all of you have used them. Where is anything to throw in dispute Dr. Denman and Dr. Norton, and if Simp King had the money that Federal Underwriters has some other individual has, he could have brought Dr. Norton or he could have come to Dr. Travis' clinic.

"Mr. Thompson (Attorney for the insurance company): We object to that because it is highly prejudicial and not admissible and out of this record and—

"The Court: The jury won't consider that remark made by counsel about money.

"Mr. Fulmer: The testimony shows that old Simp owes around a thousand dollars and can't work, and, of course, is not able to hire any other doctor and bring here out of his own pocket for evidence and what I had reference to the law permits him to bring it by deposition, and you are to consider it as if Dr. Norton appeared in person."

The statement of counsel that "if Simp King had the money that Federal Underwriters has [or] some other individual has, he could have brought Dr. Norton or he could have come to Dr. Travis' clinic," constituted an improper reference to the comparative wealth of the parties. But it will be noted that the court promptly instructed the jury not to consider this argument, and, under the prior decisions of this Court, the argument complained of what was not so prejudicial or inflammatory in its nature that its harmful effect could not be removed by such instructions. Davis v. Hill, Tex.Com.App., 298 S.W. 526; Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, Par. 8. Under these circumstances it will be presumed that the harmful effect of the improper argument was removed by the instructions. Id.; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

The further argument of counsel along the same lines, which was made after the court had sustained the objection to the prior argument, does not appear to have been objected to, and the court was not requested to instruct the jury not to consider same. Under these circumstances no reversible error is presented.

(2) "Mr Fulmer: The Court defines `Total Incapacity.' Disability and incapacity means the same. If you were asked about total, you would think of all of it. I feel the doctors, when you ask them concerning total disability, they have in mind their version of it. I attempted to ask Dr. Smith about that and embody the legal definition and you are under to follow it. I was trying to put that in and Mr. Thompson objected to it. If I had put that in there, how do you know what Dr. Smith would have said? He might have said `yes,' if I had got that in there.

"Mr. Thompson: We object to the speculative evidence. That is clearly inadmissible.

"The Court: The jury won't consider what Dr. Smith's testimony would be."

Clearly the harmful effect, if any, of the argument above referred to was removed by the instructions of ...