Lumbermen's Lloyds v. Loper
| Decision Date | 23 June 1954 |
| Docket Number | No. A-4579,A-4579 |
| Citation | 269 S.W.2d 367,153 Tex. 404 |
| Parties | LUMBERMEN'S LLOYDS v. LOPER et al. |
| Court | Texas Supreme Court |
T. Gilbert Adams, Jasper, Collins, Garrison, Renfrow & Zeleskey and Henry H. Rogers, Lufkin, for petitioner.
Faver & Barnes, Jasper, for respondents.
The assignments of error in this workmen's compensation suit add yet again to our lengthening list of improper argument cases, which, because of the reticence of trial judges, lack of self-restraint on the part of lawyers, or some other cause, increasingly burden an already heavy docket of personal injury claims.
The argument in question was made by counsel for the defendant insurance carrier (petitioner here) and caused an otherwise amply justifiable verdict and trial court judgment in its favor to be set aside in an elaborate opinion of the Beaumont Court of Civil Appeals, followed by two opinions on first and second motions for rehearing respectively. 269 S.W.2d 353.
The claimant, Loper, (succeeded on his death by the respondents, his widow and child) was at the time of his alleged injury on February 9, 1951, a man of some seventy-two years, drawing old age benefits from the government and afflicted with a very recently, though slightly, perforated duodenal ulcer in addition to some abnormality of the heart and hardening of the arteries. The claim was that this ulcer (the mentioned perforation from which had apparently closed at the time of the alleged injury) was torn into a large perforation by a blow from a piece of timber which allegedly struck the claimant in this area of his abdomen, while he was working at Bon Wier, Newton County, as one of a sawmill crew of his employer, Bon Wier Lumber Company, which had hired him only a few days previously. On February 11, 1951, the perforation was patched in an operation at John Sealy Hospital at Galveston, to which the claimant had been referred as a charity patient by Dr. Whitecloud of Newton, the physician to whom the employer sent the claimant a few hours after the time of the alleged accident; but after lingering about three months, the claimant died, evidently because of peritonitis resulting from the perforation.
The sawmill crew mentioned consisted of six men, of whom three, including the claimant, had died before the trial. The apparatus which they were operating was, so far as we can tell from the record, some sixty-five or seventy feet in length but considerably less than that in width. Apparently the rough logs enter at one end and by means of a carriage are pushed against a circular saw located a few feet further along and in this process are sawed lengthwise, each log thus continuing along in the same direction it started, but being in more than one piece after passing the saw. Any useless slabs thus resulting are guided off to one side onto another conveyer just after leaving the saw, while the useful pieces continue straight along and eventually are cut by other saws into proper lengths at the end of the machine opposite that of original entry of the logs. At the log entry end is stationed one crewman, who gets the logs properly placed on the carriage. Following this man, at just a few feet distance is the 'sawyer,' who manages the saw and more or less oversees the whole operation. The saw itself is located slightly down the line of operation from the sawyer.
A few feet further along and to one side is the place occupied by the claimant, who is thus quite close to the sawyer and not over fifteen feet from the first man in the line. The claimant's duties seem to have consisted of watching the sawed timbers as they passed him and guiding the useless ones to the conveyer that carried them away. For this purpose he stood in a little depression or pit close to and facing the machine.
Still further along the line of operations were the three remaining men, spaced at intervals and terminating with one Sandy Brooks, who had charge of cutting the timbers into particular lengths. Brooks stood about fifty feet away from the position of the claimant and on the opposite side of the machinery from the latter, but facing so that, if he looked sideways for the distance indicated, he could see the claimant.
The main fact issue on the evidence was, not whether the obviously unusual occurrence of an external blow causing an ulcerated intestine to be perforated was possible or probable, but whether the claimant suffered a blow at all, which the jury in effect found that he did not. The most emphasized portion of the offending argument dealt exclusively with the former, although an important part dealt also with the main question.
Undoubtedly the claimant at a moment shortly before noon on February 9th suddenly quit his post while the machine was in full operation, and by this and subsequent conduct and words gave evidence of some physical disturbance, though obviously he was not unconscious and left his place in part at least by his own efforts. Of the three members of the crew living at the time of the trial, the sawyer and the man at the log entry end of the machine, who were evidently in a better position than anyone else to see what happened, testified that the claimant simply stopped working and that no accident or injury occurred, while Sandy Brooks, who was in about the poorest position of all to observe, was the only witness from the crew or otherwise who supplied evidence to the contrary. As Brooks reluctantly admitted, after denying that he was 'related to' the claimant, his wife was a second cousin of the respondent widow. It was also developed from him that he was, for many years, a neighbor, co-worker and friend of the claimant and had actually gotten claimant the job at which he was working. He said that claimant, 'learned me how to sawmill.' He testified in effect that, at exactly eleven fifty-five A.M., the timber struck the claimant in the side, that claimant 'throwed up his hands,' dropped to his knees and (seemingly!) remained kneeling for at least several minutes thereafter, holding his side, until 'the whistle blowed' for lunch, and the witness assisted him to a nearby room where he lay down and told the witness 'that slab got him.'
As against this latter alleged statement of the claimant, there was abundant and uncontradicted evidence that the claimant's body showed no...
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...arguments of an accusatory nature against opposing counsel similar to those under review here. It was recited in Lumbermen's Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367 (1954), that counsel for one party in effect accused counsel for the other party of suborning false testimony on the par......
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