Phoenix Refining Co. v. Morgan

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Phoenix Refining Co. v. Morgan, 178 S.W.2d 175 (Tex. App. 1944)
• Decision Date: 27 January 1944
• Docket Number: No. 11592.,11592.
• Parties: PHOENIX REFINING CO. v. MORGAN et al.

178 S.W.2d 175

PHOENIX REFINING CO. v. MORGAN et al.

No. 11592.

Court of Civil Appeals of Texas. Galveston.

January 27, 1944.

Rehearing Denied March 1, 1944.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Suit by Mrs. Lucille Morgan, individually and as administratrix of the estate of her deceased husband, Neal Morgan, and also as the mother and next friend of her minor son, Gene Ray Morgan, against the Phoenix Refining Company, for the death of Neal Morgan growing out of an automobile collision. Defendant filed a cross-action. From a judgment for plaintiffs, defendant appeals, and plaintiffs filed cross-assignments of error.

Affirmed.

Kemper, Hicks & Cramer, of Houston (John G. Cramer, of Houston, of counsel), for appellant.

Earl Cox, of Houston, for appellees.

GRAVES, Justice.

Appellant's statement, admittedly correct, is adopted:

"This is a suit for damages brought by appellees, Mrs. Lucille Morgan, a widow, suing individually and as the administratrix of the estate of her deceased husband, Neal Morgan, and also as the mother and next friend of her minor son, Gene Ray Morgan, for the death of said Neal Morgan growing out of an automobile collision between a truck owned by Neal Morgan, deceased, and driven by his son, Gene Ray Morgan, and a truck owned by appellant, Phoenix Refining Company; said accident occurring on March 20, 1942, on Highway No. 90, in Colorado County, Texas, at about 7 o'clock A.M. A cross action was also filed herein by appellant for the damages to its truck and load of gasoline in said collision.

"The case was tried to a jury, and said jury returned a verdict in favor of appellees, awarding Mrs. Morgan $45,000.00 damages for the death of her husband, and the minor plaintiff, $2,500.00 for the death of his father. On March 19, 1943, the trial court entered a judgment in favor of appellees upon such jury verdict for $47,880.00 (including $380.00 funeral expenses).

"Appellant timely filed its original and amended Motions for a New Trial, and the same was by the trial court overruled on May 29, 1943, but the trial court, as a condition to overruling the same required Mrs. Lucille Morgan to file a remittitur of $15,000.00 of the $45,000.00 damages awarded her, reducing her recovery to $30,000.00, and such remittitur was timely filed by her, although she reserved a bill of exception to such action of the trial court."

This admirable group of its points on the appeal is likewise fully quoted as such:

"First Group:

"Appellant's First through its Fourth Points present respectively the error of the trial court in not granting appellant a new trial herein because of the prejudicial argument of counsel in his closing argument to the jury which not only was calculated to mislead and prejudice the jury to the injury of appellant, but was demonstrated to have actually had such effect upon the jury."

"Fifth Point:

"The error of the trial court in overruling appellant's Motion for a New Trial based upon the refusal of the trial court to submit to the jury appellant's requested Special Issues Nos. 1, 2, 3 and 4 presenting its defense of `discovered peril', although such defense was raised by both the pleadings and the evidence in this case, and such issues were each separately and timely requested by the defendant and cross-plaintiff, but `refused' by the trial court."

"Third Group:

"Appellant's Sixth and Seventh Points present respectively the error of the trial court in submitting Special Issue No. 22 to the jury (when the undisputed evidence revealed that Gene Ray Morgan prior to the accident failed to drive his truck entirely upon its own right-hand side of the highway along which it was proceeding), and submitting Special Issues Nos. 23 and 24 conditioned upon an affirmative answer to Special Issue No. 22, and the jury having answered Special Issue No. 22 in the negative, contrary to the undisputed evidence, and having made no answer to Special Issues Nos. 23 and 24, this appellant, by such submission, and such action of the jury, was deprived of a jury finding in answer to its defense set forth in Special Issues Nos. 23 and 24; and likewise, the trial court having erred in submitting Special Issue No. 25 to the jury (when the undisputed evidence revealed that Gene Ray Morgan prior to the accident failed to drive his truck upon its own right-hand side of the highway in the direction that it was proceeding at a time when the road on its left-hand side of such highway was not clear and unobstructed for a distance of 50 yards ahead of such truck), and in submitting Special Issue No. 26 conditioned upon an affirmative answer to Special Issue No. 25, and the jury having answered Special Issue No. 25 in the negative, contrary to the undisputed evidence, and made no answer to Special Issue No. 26, this appellant, by such submission, and such action of the jury, was deprived of a jury finding in answer to its defense set forth in Special Issue No. 26; since there was no evidence to support the jury's answers to either Special Issues Nos. 22 or 25, and the fact inquired about in each of such issues should have been answered by the trial court as existing, under the undisputed evidence, and the real defensive issues should not have been conditional upon issues which had been proven during the trial by the undisputed evidence."

The complained-of argument, under this "First Group", as quoted and italicized by appellant in its brief, was in the main this:

"That would then get you to issue No. 35 which is the issue of damages. You will read that issue. It asks you what sum of money in your opinion would reasonably compensate Mrs. Morgan for the loss of her husband taking into consideration the contributions, support and maintenance— anything that might be measured in money—pecuniary benefits that she might receive. I have sued for $45,000, and if you will take a pencil and paper—that wasn't just an amount that I plucked out of thin air—I say it is based on a mathematical calculation.

"She tells you her husband contributed to her support, her maintenance, money for clothes, and she told you it amounted to $150.00 a month. That is $1,800.00 a year. $1,800.00 a year for twenty-five years, the life expectancy of the husband of this lady, is exactly $45,000.00.

"Now, in that connection, let me tell you this. You are not awarding judgment against anybody in this case. You are finding the facts. The Court asks you in Special Issue No. 35 what sum of money if paid now in cash do you find from a preponderance of the evidence would fairly and reasonably compensate this woman. You are asked in effect an abstract question. The Court asks you what amount of money in your opinion would be fair compensation to this lady. It is up to the Court to enter such judgment as he sees fit on the verdict you return.

"It is exactly—there is no difference— if the Court would put a sack full of silver dollars in this jury's hands and tell you gentlemen, `You go into the jury room and count these dollars and come back and tell me how many there are in the sack'; you would go in there and count them and you would come back and say, `There are $500 in this sack.' He would say, `All right, gentlemen, you have found the amount of money in that sack.'

"He has asked you what amount of money in your opinion—you are not rendering judgment, because it is up to him to render such as he sees fit—you are asked what amount of money will fairly and adequately compensate this lady. How are you going to find it? I say as to the boy there is no way it could be calculated. Gene may not be entitled to anything. It may be worth five thousand dollars. It may be worth five hundred dollars. That is something a man would have to guess at, but where a woman loses her husband and you have the age of the husband, the age of the woman, you have the earnings of the husband, you have the amount that the husband contributed to the wife, and you have the life expectancy of the husband, then it is a matter of arithmetic, and nothing else.

"I am asking you in that connection in answering Issue No. 35, I am asking you to answer that issue under the evidence, and under the calculations based upon the undisputed evidence, to answer that issue $45,000.00 no more, no less, and then it will be up to the Judge, after you have found the facts, it will be up to the Judge to decide what judgment shall be entered on your verdict. * * *

"I want to tell you gentlemen if at any time in the future you are sitting at home by your firesides, perhaps with your families, if you ever think of this law suit that you have sat upon here, if you ever think of Mrs. Morgan, this widow, left alone in the world — if you ever think of this boy, Gene, who will be heaven knows where in this war—if you ever think of these people in this case—if you can feel in your minds, `I feel satisfied about that lawsuit, I am satisfied with the verdict I returned in that case, I know I did the right thing, I know I did the just thing, I know I answered those issues in that case from a preponderance of the evidence without fear or favor, or without prejudice or malice', if you can feel that way, gentlemen, as I am sure you will be able to feel, I know you will feel satisfied—that you will be satisfied with what you have done. Mrs. Morgan will be satisfied. Mrs. Morgan at this stage of her life, gentlemen, with Bobby Burns, can well say:

    "`Oh life, thou art a galling load
                      Along a rough and weary road
                      For wretches such as I.'
                  "I thank you."
                

No objection at any time during or after the delivery of this argument was made to any part of it by the appellant, which took its chances on the jury's verdict upon the 36 special issues-of-fact submitted by the court notwithstanding it, but challenged it for the first time in its motion for a new trial, contending there, in the many details emphasized by its quoted underscoring, that the argument had been...