Lange v. Lawrence

• Decision Date: 13 February 1924
• Docket Number: (No. 7088.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 259 S.W. 261
• Parties: LANGE v. LAWRENCE.
• Court: Texas Court of Appeals

259 S.W. 261

LANGE v. LAWRENCE.

(No. 7088.)^*

Court of Civil Appeals of Texas. San Antonio.

February 13, 1924.

Rehearing Denied March 5, 1924.

Appeal from District Court, Bexar County; Robt. B. Minor, Judge.

Action by T. P. Lawrence against B. J. Lange, Jr. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Birkhead & Lang and Edward H. Lange, all of San Antonio, for appellant.

Davis & Long, of San Antonio, for appellee.

SMITH, J.

This suit resulted from a collision between automobiles owned and being driven at the time by the respective parties. Lawrence claimed to have been injured in the collision, and in a trial before a jury recovered judgment against Lange for $2,500.

It is shown in a bill of exception that:

"After the voir dire examination of the jury panel had been completed by counsel for both the plaintiff and defendant, counsel for plaintiff propounded the following questions to the panel: `Have any of you gentlemen or are any of you gentlemen or any of your relatives connected in any way with any liability insurance company, or have you or do you own any stock in an insurance liability company?' Counsel for defendant thereupon objected to said question as irrelevant and immaterial and highly prejudicial to the defendant, in that it served to suggest to the minds of the jury that an insurance company was involved in the case, and that an insurance company was to bear the burden of the loss if there were any burden to be borne, and moved that the panel be discharged. The jurors were then instructed to retire, whereupon the court, after hearing the argument of counsel for plaintiff and defendant, overruled the defendant's objection to said question and defendant's motion to discharge the jury panel. * * *"

This bill was qualified by the trial court in this way:

"When the question quoted in this bill of exceptions was propounded and when objection was made to it by counsel for defendant, counsel for plaintiff stated that the question was asked in order that plaintiff might obtain valuable information which was necessary for him to strike the jury and select a fair and impartial jury before whom to try his case. No intimation was made that defendant had insurance and the question was general as shown by the question copied in this bill of exception."

We are thus confronted with the question of whether or not the incident described was of such nature as to require reversal of the judgment rendered in favor of the party precipitating that incident. It should be stated at the outset that, so far as the record shows, no liability insurance company, nor any kind of insurance company, is or has ever been concerned in the litigation, directly or otherwise.

It was, of course, wholly immaterial whether or not appellant was insured against liability in this case, and appellee would not have been permitted, in the face of exception or objection, to plead or prove the existence or nonexistence of that fact. It has been repeatedly held to be error for the parties to ask any questions or make any statement within the hearing of the jury from which the jurors would infer, or which would suggest to them, that the defendant in such case carried liability insurance, or that an insurance company, and not the defendant, would have to pay any judgment the injured person might recover against the defendant. The reason for this well-established rule is too obvious and has been too often stated to require restatement here. No. 7089, Tarbutton v. Ambriz, decided by this court February 6, 1924, 259 S. W. 259; Levinski v. Cooper (Tex. Civ. App.) 142 S. W. 959; Carter v. Walker (Tex. Civ. App.) 165 S. W. 483; Fell v. Kimble (Tex. Civ. App.) 154 S. W. 1070; Brewing Co. v. Voith (Tex. Civ. App.) 84 S. W. 1100; Houston, etc., Co. v. Smith (Tex. Civ. App.) 160 S. W. 435; City of Austin v. Gress (Tex. Civ. App.) 156 S. W. 535; Gordon Jones Co. v. Lopez (Tex. Civ. App.) 172 S. W. 987. The practice of asking such questions, or making such suggestions, is condemned by the courts of this state, and particularly by this court. See the Tarbutton, Lopez, Voith, Smith, and Carter Cases, supra.

Of course there may be cases in which an insurance company's interest may be disclosed as an incident to legitimate inquiry into the facts of a case, as, for instance, where the agents of the insurance company testify in behalf of the insured, and their connection with the insuring company is brought out on cross-examination, or when the activities of such agents are so interwoven into the defense as to result in the disclosure of the company's interest, then the defendant ought not to be heard to complain of such disclosure. Such was the case in Carter-Mullaly v. Bustos, 187 S. W. 396, decided by this court. Nor will a judgment be reversed where the objectionable question is propounded, and it does not appear that it "took" with the jury, and the evidence was such that no other judgment could have been rendered, anyhow, as was held by this court in Railway v. Shaklee (Tex. Civ. App.) 138 S. W. 188.

In this case, however, the objectionable question was propounded to the jury out of a sky entirely clear of issues having any possible relation to the question propounded, and the incisive subtlety of the question did not render its object less obvious. In the analogous case of Houston,...