Ligon v. Green

• Decision Date: 07 November 1947
• Docket Number: No. 14879.,14879.
• Citation: 206 S.W.2d 629
• Parties: LIGON et al. v. GREEN.
• Court: Texas Court of Appeals

Page 629

206 S.W.2d 629

LIGON et al. v. GREEN.

No. 14879.

Court of Civil Appeals of Texas. Fort Worth.

November 7, 1947.

Rehearing Denied December 12, 1947.

Appeal from District Court, Tarrant County; Thomas J. Renfro, Judge.

Action by Tom Ligon, individually and as next friend for and on behalf of Yvonne Ligon, his daughter, against W. B. Green for injuries sustained by minor daughter when she was struck by defendant's truck. Judgment for defendant and plaintiffs appeal.

Affirmed.

J. Rob Griffin and H. S. Lattimore, both of Fort Worth, for appellants.

S. A. Crowley and Judge Gambill, both of Fort Worth, for appellee.

HALL, Justice.

Appellant, Tom Ligon, brought this suit individually and as next friend for and on behalf of his 5½ year old daughter, Yvonne Ligon, for personal injury damages which resulted to them by reason of Yvonne having been injured by appellee's truck striking her. The case was tried to a jury, and judgment was rendered in favor of appellee upon the finding that Yvonne was guilty of contributory negligence. This is the second appeal of this case to this court. Green v. Ligon, Tex.Civ.App., 190 S.W. 2d 742.

Appellants assign five points of error for the basis of securing a reversal. Points Nos. 1 and 2 are as follows:

(1) The Honorable District Judge erred in permitting Mrs. McCullough to testify that her father (W. B. Green, appellee herein) was at home and had not been able to attend to business for two years and has had several bad heart attacks and is very nervous, and in overruling plaintiff's objections to the same that the evidence was not germane to any issue for the jury and would unlawfully elicit the sympathy of the jury.

(2) The Honorable District Judge erred in failing to grant plaintiff a new trial because one juror, during the deliberations of the jury upon their verdict, told the remainder of the jury that a verdict against appellee Green might kill him.

Points 1 and 2 complain of the following testimony elicited from appellee's witness, Mrs. Ray McCullough:

"Q. Are you related in any way to W. B. Green? A. Yes, sir, I am his daughter.

"Q. Do you know why Mr. Green is not present at this trial? A. Yes, he has been ill. In fact he has not been able to carry on business for about two years, and he has had several bad heart attacks, and he is very nervous."

Appellants made the following objection: "Mr. Lattimore: We object to that question. There is no showing that Mr. Green was at the scene of the accident, and there is no testimony that we know of concerning Mr. Green's presence or absence. It is simply a plain effort to inject prejudice and sympathy before the jury and can serve no proper inquiry of any sort whatsoever, the situation of his health at this time, we object to it and ask the court to instruct the jury not to consider it."

This was followed by statements from opposing counsel and the court:

"Mr. Crowley: We want the jury to understand why Mr. Green is not here in court when this case is tried.

"The Court: The Court admits the evidence only for the purpose of showing why Mr. Green is not here, and the jury will not consider it for any other purpose."

Appellants contend that the witness, Mrs. McCullough, was on the witness stand for the sole purpose of eliciting prejudicial testimony, to excite sympathy for the appellee, and that it was immaterial because the testimony does not show that appellee, Mr. Green, was present at the time of the accident and could testify to nothing pertinent to the issues involved.

We disagree with appellants' theory that it was not pertinent to prove the absence of the appellee Green, who was the defendant in the law suit, because it is the well-established law in this state that either the failure of a party in a civil case to testify or to be absent from the trial raises a strong presumption against him and is a legitimate matter for argument. 41 Tex.Jur. p. 785, par. 66; 64 C.J. p. 69, par. 66; 53 Am. Jur. p. 374, par. 469.

The rule on admissibility of evidence is well established to be the same as upon argument of counsel or misconduct of the jury. Bell v. Blackwell, Tex.Com. App., 283 S.W. 765; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946. In the case of the City of Mart v. Hasse, Tex.Civ.App., 281 S.W. 318, 319, writ dismissed, cited by Tex.Jur., supra, it was held to be improper argument for counsel to refer to his own client as the poor old man who is "flat on his back" and unable to attend court, but the fact as to whether such error becomes reversible depends upon whether or not the verdict is against the evidence or appears to have been affected by such argument. The court reversed and remanded it for a new trial because it found that the judgment showed to be excessive, and it further found that the statement complained of was not rebuked by the trial court and no instruction given to the jury not to consider same. The case, however, was tried before the effective date of our present Texas Rules of Civil Procedure. At that time it was the settled law of this state that where testimony was inadmissible, the verdict had to be set aside if there was a reasonable doubt in the minds of the members of the reviewing court as to whether or not such inadmissible testimony affected the verdict as against the complaining party.

It is now the law under Rule 434 that no judgment shall be reversed unless the error complained of probably caused rendition of an improper judgment and such rule has enlarged the doctrine of "harmless error", so as to cast upon the complaining party the burden of showing at least that error probably resulted to his prejudice. American Nat. Bank of Austin v. Sheppard,...