Leonard & Harral Packing Co. v. Hahn

• Decision Date: 31 July 1978
• Docket Number: No. 15949,15949
• Citation: 571 S.W.2d 201
• Parties: LEONARD AND HARRAL PACKING COMPANY, Appellant, v. Randall HAHN et al., Appellees.
• Court: Texas Court of Appeals

Page 201

571 S.W.2d 201

LEONARD AND HARRAL PACKING COMPANY, Appellant, v. Randall HAHN et al., Appellees.

No. 15949.

Court of Civil Appeals of Texas, San Antonio.

July 31, 1978.

Rehearing Denied Sept. 26, 1978.

R. H. Mercer, Richard G. Strong, San Antonio, for appellant.

Robert B. Thornton, Robert R. Biechlin, Jr., Ronald S. Schmidt, Moursund, Ball & Young, Edward P. Fahey, Groce, Locke & Hebdon, San Antonio, for appellees.

MURRAY, Justice.

This is a statutory wrongful death action brought by Randall Hahn against Leonard and Harral Packing Company, and Sears Roebuck & Company. Hahn alleges that negligence of the driver of L & H's truck caused its collision with a vehicle driven by his wife, Wanda Ruth Hahn, and thus caused her death. He also alleges that negligence of Sears in connection with inspection of the tire on the truck caused the collision and that Sears was liable as vendor of a defective tire.

L & H brought a third party action against Sears, as vendor, and Kelly-Springfield Tire Company, as manufacturer, of a defective tire which blew out while on the left front wheel of L & H's tractor, causing the driver to lose control of the tractor and trailer. This action was brought under negligence, breach of warranty and strict liability in tort for damages to the tractor and trailer and for indemnity and contribution on any judgment rendered against L & H to Hahn.

The case was submitted to the jury on special issues which found L & H's driver guilty of various acts of negligence, which were a proximate cause of the accident in question, and that the tire in question was not defective at the time it was sold. The jury awarded Hahn $225,000 for the pecuniary loss resulting from the death of his wife and $1,298.50 for funeral and burial expenses. The trial court entered judgment awarding Hahn actual damages against L & H and denied any recovery against Sears.

L & H has perfected appeal to this court and by its Points of Error Nos. 1 and 2 asserts improper jury argument by counsel for Hahn and that the judgment is excessive.

In connection with the jury argument, no objection was made on behalf of L & H.

It would be impossible for an attorney to argue the damages of a case such as this one without touching the natural feeling of sympathy for the husband that the jury might have due to this tragic accident. The undisputed facts are that a young wife was killed after three and a half months of marriage. The attorney's reference to the marriage vows and his use of song titles, such as "Just Me and My Shadow" and "Little Things Mean a Lot," and other such phrases, were not of such a character as would require reversal under any circumstances. We hold that the remarks were not so plainly prejudicial to L & H as to demand that the verdict be set aside, in the absence of an objection by its counsel at the time the words were spoken. In a case such as this, attorney for the plaintiff could not be expected to be apathetic nor could he be required to present his client's case to the jury in a stoic manner. Turner v. Turner, 385 S.W.2d 230 (Tex.1964); Ramirez v. Acker,134 Tex. 647, 138 S.W.2d 1054 (1940). In Ramirez, the Supreme Court stated, at page 1056:

It is not the purpose of the rules announced by this court to unreasonably limit counsel in discussing the facts and issues raised by the evidence. Great latitude must be allowed in this regard. Counsel ofttimes in their zeal in their arguments to the jury make statements the effect of which can be controlled by the court's telling counsel to desist making same and by instructing the jury to disregard same.

And in Turner, the Supreme Court said, 385 S.W.2d at page 237 We must presume that the trial judge, on proper objection being made, had he considered the argument unfair or vicious would have sustained objections and given appropriate instructions to the jury to disregard the same.

Argument which could be properly cured by objection by opposing counsel and instruction (is) by the trial judge is not reversible error in the absence of such objection. Unless the argument is incurable, a litigant will not be permitted to lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of improper argument in a motion for new trial.

We, therefore, overrule this point of error urged by L & H.

L & H's Point of Error No. Two is as follows:

The Trial Court erred in granting judgment against the defendant Leonard and Harral Packing Company in the sum of $226,298.50 because that judgment is excessive.

This point only raises the issue of either legal sufficiency of the evidence or the point of no evidence. McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.1964); Calvert, 38 Texas L.Rev. 361 (1960). In McDonald, the Supreme Court said, at page 548:

The points do not seek relief from the jury findings on the ground that they are not supported by sufficient evidence or that they are against the great weight of the evidence, but relate only to the type of judgment that the Court entered. They are not applicable to the granting of a new trial after the entry of a judgment. We therefore hold that the points in the Court of Civil Appeals above referred to only raise(d) the legal sufficiency of the evidence or the point of no evidence.

Damages in cases of this nature cannot be proved with a certainty and accuracy as in other cases and the jury must necessarily be vested with considerable discretion and latitude in fixing damages. Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App. Fort Worth 1959, writ ref'd n. r. e.). The amount of damages may not be determined alone by what judges of trial courts or reviewing courts would have awarded had they been sitting as triers of the fact. It is not the function of the court of civil appeals to substitute its opinion for the verdict of the jury on the amount of recovery, nor to disturb it in the absence of a showing that a jury was influenced by passion, prejudice, or some other improper motive. Armstrong Tire & Rubber Company v. Shearer, 290 S.W.2d 294 (Tex.Civ.App. San Antonio 1956, writ ref'd n. r. e.).

At the time of decedent's death she was 28 years of age and had had two years of college. Prior to the marriage to Hahn, the decedent had worked at a country club making $2.75 per hour and for two or three weeks before her death she was delivering papers for the San Antonio Light with the help of her husband.

Hahn, who was three years younger than his wife, testified at length concerning the quality of the relationship with his deceased wife and her services around the house, her availability for daily consultation and comfort, her care and support, and her invaluable advice and direction in family matters.

We have reviewed the evidence in this case, including the testimony of plaintiff's witness, John Schieren, a Doctor of Economics and Professor in the School of Business at Texas Christian University, and although the verdict of the jury was high, we cannot say that the award exceeded reasonable compensation in this case. Appellant's Point of Error No. Two is overruled.

Appellant next complains of the action of the trial court in refusing to submit its requested Issue No. 1 with its accompanying definitions. Requested Issue No. 1 is as follows:

Do you find from a preponderance of the evidence that the tire on the left front wheel of Leonard and Harral Packing Company's truck No. 118, as manufactured by Kelly-Springfield Tire Company at the time the tire was sold...