Missouri Pacific R. Co. v. Huebner, No. 13-84-166-CV

CourtCourt of Appeals of Texas
Writing for the CourtBefore NYE; SEERDEN
Citation704 S.W.2d 353
Docket NumberNo. 13-84-166-CV
Decision Date30 May 1985
PartiesMISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Bert L. HUEBNER, Administrator of the Estate of Clay Carroll Dove, Deceased, et al., Appellees.

Page 353

704 S.W.2d 353
MISSOURI PACIFIC RAILROAD COMPANY, Appellant,
v.
Bert L. HUEBNER, Administrator of the Estate of Clay Carroll
Dove, Deceased, et al., Appellees.
No. 13-84-166-CV.
Court of Appeals of Texas,
Corpus Christi.
May 30, 1985.
Rehearing Denied Sept. 5, 1985.

Page 354

Gay C. Brinson, Jr., Vinson & Elkins, Houston, James W. Wray, Jr., James L. Anthony, Kleberg, Redford & Weil, Corpus Christi, for appellant.

Don Bowen, Houston, James A. Smith, Port Lavaca, Jack Tucker, Houston, William F. Seerden, Cullen, Carsner, Seerden, Victoria, W. James Kronzer, Houston, Lloyd Lockridge, McGinn, Lockridge & Kilgore, Austin, for appellees.

Before NYE, C.J., and SEERDEN and KENNEDY, JJ.

OPINION

SEERDEN, Justice.

This suit was instituted by Bert L. Huebner, administrator of the estate of Clay Carroll Dove, deceased, and on behalf of Roselyn Helen Dove, his widow and Stephanie Rose Dove and Trey Carroll Dove, his surviving minor children. Missouri Pacific Railroad Company, the deceased's employer at the time of the incident causing his death, was sued under the Federal Employees Liability Act, 45 U.S.C. 51 et seq. The cause of action against the other defendants was brought under the Texas Survival and Wrongful Death Acts. TEX.REV.CIV.STAT.ANN. art. 5525 et seq. (Vernon 1958) and TEX.REV.CIV.STAT.ANN. art. 4671 et seq. (Vernon 1976). Trial was to a jury, which found the railroad 90% liable for the death of Clay Dove and awarded $5,400,000 in damages. Missouri Pacific Railroad Company is the only defendant bringing this appeal.

The incident which is made the basis of this suit occurred on December 9, 1982 at approximately 9:30 p.m. on a farm to market road in Victoria County, near the Jackson County line. While the railroad crew with which Clay Dove worked was being transported to its work site by Ronnie Bounds, d/b/a Victoria Carrier Service, an independent contractor, and one of the defendants below, Bounds drove across the road onto the left-hand shoulder to look for a hat which one of Dove's fellow crew members had lost on the previous nights trip. There is a curve to the right in the highway in this area and, while the Bounds vehicle was on the shoulder of the highway, facing oncoming traffic with its lights on, a petroleum tank truck owned by Scurlock Oil Company, a defendant below, and one of the appellees here, and operated by Ernest Lewis, approached from the opposite direction. As the tank truck approached the Bound's vehicle, it left the pavement and ultimately collided with the

Page 355

Bound's vehicle killing Clay Dove and one other member of the railroad crew.

Prior to the beginning of the trial, Huebner, on behalf of the Doves entered into an agreement with Scurlock and its employee, Lewis, whereby the Doves were guaranteed that they would receive $2,500,000; however, if the jury award was that much or more and if the apportionment of fault exonerated or lessened Scurlock's liability to less than the $2,500,000, they would only pay the lesser amount. In fact, the verdict and judgment of the trial court had this effect, since Scurlock's part of the $5,400,000 of damages was determined to be only 10%.

The first four points of error relate to conduct of appellees and the trial court relative to the agreement set out above. Appellant contends that 1) the trial court should have granted a mistrial because of the statements of the Doves' counsel during voir dire concerning the agreement; 2) the trial court refused to instruct the jury that there was no antagonism between the Doves and Scurlock; 3) the trial court failed to re-align the parties for cross-examination and argument; and, 4) the trial court erred in admitting the testimony of Huebner that the agreement was in the best interest of the estate.

During the voir dire of the jury panel, counsel for the Doves made a statement that "because of the concern this company (Scurlock) has for these people, they have entered into an agreement ... (with plaintiff's)...." Appellant moved for a mistrial, which was overruled. The court, however, instructed the jury to disregard the remarks and advised the jury that the Doves and Scurlock had made an agreement which was advantageous to the Doves.

Generally, the fact that a co-defendant has entered into a settlement agreement with plaintiff should be excluded from the jury. McGuire v. Commercial Union Ins. Co., 431 S.W.2d 347 (Tex.1968). Therefore, it was proper for the court to instruct the jury to disregard the remarks of plaintiffs' counsel. While appellant contends that the remarks on voir dire were so prejudicial that no instruction could undo such effects, there is no evidence that any of the jurors' decision on any of the special issues was affected by the settlement agreement. No objection was made to the trial judge's statement that an agreement advantageous to plaintiff had been reached with Scurlock. The verdict of the jury was unanimous. We fail to see that the remarks could have had the effect contended by appellant.

There was no complaint that the trial judge advised the jury panel that an agreement had been reached. Appellant's complaint is that the statement did not go farther and state that there was no antagonism between the Doves and Scurlock. During their portion of the voir dire both counsel for Ronnie Bounds and counsel for the appellant alluded to the fact that the Doves and Scurlock had "made their deal" and that it might affect the way they presented the evidence. After voir dire was completed but before the presentation of the evidence began, the agreement was reduced to writing and a discussion was had concerning it outside the presence of the jury. At this point, there was no question that the interests of the parties were such that the Doves, Scurlock, and Lewis had a common interest in laying the bulk of the responsibility for the collision on the appellant, and appellant and Bounds had a common interest in contesting such claims.

It was during this discussion that appellant made the requests that the judge advise the jury that there was no antagonism between the parties to the agreement and that the parties be aligned to reflect this fact. The judge indicated that he had already re-aligned the parties and the record reflects that the trial court equalized the jury strikes to reflect the proper alignment of the parties. At the conclusion of the discussion, the trial judge stated: "I think we will start the case the way it is. If they (the jury) need any additional instructions, we will give it to them in writing and not orally. We need to bring the jury in."

Page 356

During the presentation of the case, appellant made no objection to any counsel being allowed to cross-examine witnesses, nor did it complain of the order or right of the various parties to make final arguments. We hold that appellant waived any complaint he may have had in regard to the cross-examination of witnesses by more than one lawyer as well as the order of presentation of argument. See PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559 (Tex.1981); TEX.R.CIV.P. 373.

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7 practice notes
  • Hauglum v. Durst, No. 13-88-065-CV
    • United States
    • Court of Appeals of Texas
    • 30 Marzo 1989
    ...in a "Mary Carter" agreement. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 3-4 (Tex.1986); Missouri Pacific Railroad Co. v. Huebner, 704 S.W.2d 353, 356 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Therefore, they were properly excluded by the trial court. Town East Ford Sales, I......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • 26 Noviembre 1986
    ...was not yet final in Missouri Pacific Railroad Co. v. Bert L. Huebner, Administrator of the Estate of Clay Carroll Dove, Deceased, 704 S.W.2d 353 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Because Dove was still on appeal, Scurlock sought to abate the Smithwick trial until the Dove......
  • Trailways, Inc. v. Clark, No. 13-87-227-CV
    • United States
    • Court of Appeals of Texas
    • 22 Junio 1990
    ...or subsequent presentation of essentially the same evidence without objection waives error. See Missouri Pacific R.R. Co. v. Huebner, 704 S.W.2d 353, 357-58 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); In re Dahl, 590 S.W.2d 191, 199 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). ......
  • Celotex Corp. v. Tate, No. 13-89-444-CV
    • United States
    • Court of Appeals of Texas
    • 31 Agosto 1990
    ...evidence. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Trailways, 794 S.W.2d at 488; see also Missouri Pac. R.R. Co. v. Huebner, 704 S.W.2d 353, 357-58 (Tex.App.--Corpus Christi 1985, writ ref'd In an effort to show the knowledge of the dangers of asbestos exposure that Celotex had ......
  • Request a trial to view additional results
7 cases
  • Hauglum v. Durst, No. 13-88-065-CV
    • United States
    • Court of Appeals of Texas
    • 30 Marzo 1989
    ...in a "Mary Carter" agreement. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 3-4 (Tex.1986); Missouri Pacific Railroad Co. v. Huebner, 704 S.W.2d 353, 356 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Therefore, they were properly excluded by the trial court. Town East Ford Sales, I......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • 26 Noviembre 1986
    ...was not yet final in Missouri Pacific Railroad Co. v. Bert L. Huebner, Administrator of the Estate of Clay Carroll Dove, Deceased, 704 S.W.2d 353 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Because Dove was still on appeal, Scurlock sought to abate the Smithwick trial until the Dove......
  • Trailways, Inc. v. Clark, No. 13-87-227-CV
    • United States
    • Court of Appeals of Texas
    • 22 Junio 1990
    ...or subsequent presentation of essentially the same evidence without objection waives error. See Missouri Pacific R.R. Co. v. Huebner, 704 S.W.2d 353, 357-58 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); In re Dahl, 590 S.W.2d 191, 199 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). ......
  • Celotex Corp. v. Tate, No. 13-89-444-CV
    • United States
    • Court of Appeals of Texas
    • 31 Agosto 1990
    ...evidence. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Trailways, 794 S.W.2d at 488; see also Missouri Pac. R.R. Co. v. Huebner, 704 S.W.2d 353, 357-58 (Tex.App.--Corpus Christi 1985, writ ref'd In an effort to show the knowledge of the dangers of asbestos exposure that Celotex had ......
  • Request a trial to view additional results

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