Magaline v. J. V. Harrison Truck Lines, Inc.

• Decision Date: 15 October 1969
• Docket Number: No. 259,259
• Citation: 446 S.W.2d 920
• Parties: George J. MAGALINE, Appellant, v. J. V. HARRISON TRUCK LINES, INC., et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 920

446 S.W.2d 920

George J. MAGALINE, Appellant, v. J. V. HARRISON TRUCK LINES, INC., et al., Appellees.

No. 259.

Court of Civil Appeals of Texas Houston (14th Dist.).

Oct. 15, 1969.

Rehearing Denied Nov. 19, 1969.

Michael A. Moriarty, S. M. Helm, Helm, Jones & Pletcher, Houston, for appellant.

Harry L. Tindall, Charles M. Haden, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.

SAM D. JOHNSON, Justice.

The plaintiff, George J. Magaline, brought this suit for injuries which he allegedly sustained as a result of a car truck collision on December 7, 1967. On this date and in the general location of the collision, 17 cars and trucks were involved in a series of accidents . The defendants, J. V. Harrison Truck Lines, Inc., and Wiley Burton, were, respectively, the owner and the driver of the truck which allegedly struck the automobile occupied by the plaintiff.

In substance, the jury found that the plaintiff, George J. Magaline, was not in his automobile at the time when it was struck by the Harrison truck. As a result of this determination the other special issues concerning conduct of the plaintiff driver, defendant driver, and monetary damages were not answered by the jury. The trial court entered judgment that the plaintiff take nothing by his suit against the defendants. Plaintiff duly perfects his appeal to this Court.

The record reflects a sharp conflict in the testimony on whether or not the plaintiff was in his automobile at the time it was struck by the defendant truck. Much of counsel's jury argument focused on this subject, and it was the subject matter of the first special issue. It is such jury argument of defendant's counsel that gives rise to the instant appeal.

The essence of plaintiff's testimony is as follows: That he was traveling east in the left lane of Interstate Highway No. 10, driving a white Chevrolet automobile on the morning of the collision . It was wet and foggy. He had just crossed the Trinity River bridge when he entered a thick fog bank. As he slowed his automobile he discovered that the entire east roadway and shoulder of Interstate 10 was blocked for traffic traveling east. As he came to a stop he saw the headlights from a truck bearing down on him from behind. His automobile was almost immediately thereupon struck from the rear with great force by the large trailer type truck that was behind him. As he got out of his car he called a man to help him. He testified that the man who responded to his call and who then carried him to the shoulder of the highway was the person later identified to him as the defendant, Wiley Burton, the driver of the defendant J. V. Harrison truck.

Wiley Burton, the driver of the defendant truck and one of the defendants, testified as follows. That he was the driver of the Harrison truck and that on the date in question he, too, was going east on Interstate 10. He crossed the same Trinity River bridge and entered a fog bank. Being then confronted with a truck crossways in the road, he swerved from the right lane to the left lane but found it blocked also. He then pulled further to the left on to the esplanade. Before stopping on the esplanade the truck which he was driving struck a glancing blow to a white Chevrolet automobile. He testified that he glanced in the Chevrolet automobile as he struck it but that he did not see anyone in it.

Sam Hargraves, owner of a garage and wrecker service, who was present at the scene of the collision, was called as a witness by the defendant. He testified that when he first saw the plaintiff's car it was stopped. It was, however, still rocking as if it had just previously hit or been hit by something. It was under these conditions that he immediately thereafter saw the plaintiff's car struck, not by the defendant truck, but by a bob-tail or van type truck. He testified that it was he who then went to the plaintiff's automobile and who personally carried the plaintiff from his automobile to the shoulder of the road. He testified that he did not see the Harrison truck.

The first four points of error brought by plaintiff-appellant allege improper jury argument by defendants' counsel. The initial response made by the defendant is that such jury argument was invited or made in answer to counsel for plaintiff's argument. It is therefore necessary to set forth the pertinent arguments.

As a part of his opening argument, counsel for plaintiff stated 'Let's first take the defendants' presentation of this case. They were going to bring this witness and that witness and the law officers and all and they were going to tell you that this was not the defendant that caused this irreparable damage; * * *.'

Later, referring to the bob-tail or van type truck, plaintiff's counsel stated, 'Because if that truck had had anything to do with it, they would have had that truck practically out there on the courthouse green and everybody that knew anything about it up here swearing their heads off. And you know it and I know it. And they would have had any officers or anybody else that could have thrown any light on it.

'They told you, 'We are going to do,' such and such. Any they have done nothing, except to confirm and buttress and solidify the supple, (sic) uncontradicted testimony of George Magaline. * * *' Following the foregoing opening argument by Mr. Helm, plaintiff's counsel, the defendants' counsel made his jury argument. Contained in the following argument by Mr. Haden, the defendants' counsel, is the complained of jury argument:

Mr. Haden: 'And anybody who really wanted to know the truth, anybody that really wanted to put on good evidence and not a smoke-screen before you in a lawsuit could go to the public records of the State Highway Patrol or the Deputy Sheriff--these are public records, they can be subpoenaed in court, these officers can be subpoenaed into court--and he could have known the name of that bob-tailed truck; now, he would have you believe that if you do what justice requires in this case and core (sic) him out and say to J. V . Harrison and Wilie Burton are not liable for this accident that George Magaline mistakingly told you about that never happened, that he is true. (Sic) Well, I can tell you one thing, this just isn't so, because he can sue that bob-tail truck or anybody--'

Mr. Helm: 'I object to the argument, this man knows who hit him and so testified to it and now counsel takes the position that after this jury passes on this case I can go sue everybody out there. That is false and I object to it and ask the Judge to so instruck that jury.'

Mr. Haden: 'I didn't say he could sue 'everybody,' I said he could sue the bob-tail truck or anybody. I mentioned or the bob-tail truck, which was mentioned in evidence in this case.'

The Court: 'Ladies and Gentlemen, you will remember the evidence and remember what he stated and if he did say that he could sue anybody up there I sustain the objection. If he said only the bob-tail truck, you may proceed with your argument. Overruled.'

Mr. Haden: 'He can go sue that bob-tail truck anytime he gets ready from this day until next December. He has a whole year to do it. There is a two-year Statute of Limitation in this State on personal injury accidents and he has got a whole year to go after that bob-tail truck. And he can subpoena every record in Joe Harland's office or the Sheriff's office or anybody else's office, including my office, and get all the information about that bob-tail truck he wants. It was very definitely a bob-tail truck that had the wheels knocked out from under it and if you don't think that is spread all over the records of these Investigating Officers who investigated this case, some ten or twelve, or however many men were out there, it's there. And it's there for anybody who wants to look at it. And Mr. Helm knows what is in those records. Joe Harland's deposition was taken up in his office and he examined him for some sixty-three pages of his testimony and I--'

Mr. Helm: 'Just a moment. You have not offered that deposition in evidence or any line of it and I object to it.'

The Court: 'Sustained. There is nothing in this record as to any of Joe Harland's testimony or anything in the record of the Highway Patrolman and, Ladies and Gentlemen, you will not consider that for any purpose in this case.'

Mr. Helm: 'Your Honor, I object further to counsel purposely getting out of the record on this highly prejudicial and untruthful argument that he is making and I want the Court to give the plaintiff in this case some protection. I can't give it to him, I confess. I am not able to protect the plaintiff in this case.'

The Court: 'I instruct the jury and I instruct you again, Ladies and Gentlemen, that you will not consider that portion of the argument for any purpose, because there is nothing in the record that the Court recalls of any records of any Highway Patrol or any deposition of the Highway Patrolman being taken at any time and they would certainly be available to both parties, if they were, and it is a violation, of course, of the rules of argument; so his objection is sustained and you will not consider it for any purpose.'

Mr. Helm: 'One more objection, I don't want to interrupt him any more and don't want to take away from his time, but--and I think he should be given an additional time for this interruption--but he is obviously by this vicious argument trying to mistrial this case and I do want the Court's protection.'

The Court: 'It has been sustained and I think I have given sufficient instructions. You may proceed, Mr. Haden.'

Mr. Haden: 'I would like to object to Mr. Helm's side-bar remarks casting reflection upon my integrity and, also, casting reflection upon this Court and saying that I am trying to mistrial this case by a vicious argument, which I am doing nothing more than trying to adequately review the evidence and see that this jury isn't hood-winked into letting him smoke-screen them'

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