Poe v. Texas Emp. Ins. Ass'n

• Decision Date: 27 February 1952
• Docket Number: No. 4846,4846
• Citation: 250 S.W.2d 619
• Parties: POE v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

Page 619

250 S.W.2d 619

POE v. TEXAS EMPLOYERS' INS. ASS'N.

No. 4846.

Court of Civil Appeals of Texas, El Paso.

Feb. 27, 1952.

Rehearing Denied March 19, 1952.

Dell Barber, Perry O. Barber, Colorado City, for appellant.

Raymond A. Lynch, Whitaker, Turpin, Kerr, Smith & Brooks, Midland, for appellee.

McGILL, Justice.

This is a workman's compensation case. Appellant Bruce O. Poe is the employee plaintiff, Odessa Natural Gasoline Company is employer, and appellee Texas Employers' Insurance Association, the insurance carrier, defendant. Trial was to a jury and on their verdict consisting of answers to certain special issues, the trial court rendered a take nothing judgment and for costs against plaintiff in favor of defendant.

Appellant presents one point of error on which he seeks a reversal:

'During cross examination of plaintiff by defendant's counsel he was asked the following question: 'After you filed your claim down before the Industrial Accident Board and they didn't give you anything, you filed suit here in this court, didn't you? " Plaintiff objected to the underlined portion of the question and the court sustained such objection and instructed the jury not to consider such statement for any purpose. Plaintiff's counsel then moved the court to declare a mistrial on the ground that such statement was so inflammatory and prejudicial to plaintiff's rights that its harmful effect could not be cured by the court's instruction. This motion and plaintiff's motion for a new trial on this ground were overruled. The orders overruling these motions are the basis of appellant's point of error. Appellee's counterpoints are to effect that the error, if any, was invited and provoked by plaintiff and was cured by the court's instruction and hence harmless.

It is a sound rule recognized by the Supreme Court of this State that in a workman's compensation case upon a trial be novo in the District Court it is improper for counsel to disclose to the jury the decision previously made by the Industrial Accident Board from which an appeal is taken. Federal Underwriters Exchange v. Bickham, 138 Tex. 128, 157 S.W.2d 356. The reason for the rule is the wholesome purpose of preventing the jury trying the case from being in anywise influenced by the action of the Board in the case. Commercial Standard Ins. Co. v. McGee, Tex.Civ.App., 40 S.W.2d 1105, cited in Federal Underwriters Exchg. v. Bickham, supra. As said in Texas Employers' Association v. Brown, Tex.Civ.App., 226 S.W.2d 233, loc. cit. 235, (2) (w. r. n. r. e.):

'There have been numerous cases before the courts involving this question. It has been held in some of them that it was error for the court to permit counsel for the claimant to emphasize the fact that the Industrial Accident Board had made an award in his favor, and others hold that where the information is merely brought out in the pleading as a matter of jurisdiction, and not emphasized, it is not reversible error. Commercial Standard Insurance Co. v. McGee, Tex.Civ.App., 40 S.W.2d 1105; Fidelity Union Casualty Co. v. Cary, Tex.Com.App., 25 S.W.2d 302; Texas Employers' Insurance Association v. Downing, Tex.Civ.App., 218 S.W. 112; Federal Underwriters Exchange v. Bickham, 138 Tex. 128, 157 S.W.2d 356; Texas Employers' Insurance Association v. Little, Tex.Civ.App., 96 S.W.2d 677.'

The pleading read to the jury by plaintiff's counsel without objection contained the following paragraph:

"That thereafter, notice having been given to all parties at interest, a hearing was had with reference to said claim for compensation before the Industrial Accident Board of the State of Texas, and that said Board on, to-wit, the 8th day of June, 1950, did make and enter its final ruling, decision and award on said claim for compensation, a certified copy of which final ruling, decision and award is on file among the papers in this cause for jurisdictional purposes only; and that on or about June 22, 1950, and within twenty days from the date of the rendition of said award, plaintiff filed written notice with the Industrial Accident Board of his intention to not abide by the said final ruling, decision and award of the Industrial Accident Board a certified copy of said notice being filed among the papers in this cause for jurisdictional purposes only; and that within twenty days from June 22, on to-wit, the 10th day of July, 1950, plaintiff instituted this suit in this Court for the purpose of having said award set aside and to recover compensation at the rate of $25.00 per week for a period of 401 weeks or a total of $10,025.00 and interest.'

Appellee's position is somewhat incongruous. It asserts that appellant by reading the quoted paragraph of his petition to the jury injected into the case the decision of the Board; that by such pleading the jury was informed that appellant was unwilling to abide by the Board's decision and filed this suit to set it aside; that the question asked by defendant's counsel did no more than this or as stated in appellee's brief:

'The question asked by appellee's counsel and here complained of was to the same effect.'

With the position we cannot agree; indeed, appellee refutes it in a subsequent argument where it insists that by use of the word 'award' in his pleading appellant created the false impression that the Board had awarded him some compensation and that appellee was entitled to correct such false impression by the question asked. We copy from appellee's brief:

'In opening his case before the jury appellant's counsel improperly read his allegations regarding the action of the Industrial Accident Board. The effect upon the jury must have been to cause them to believe either (1) that, since appellant was suing to set aside the Board's decision, that decision was unfavorable to him, and/or (2) that, since the term 'award' was emphasized, the Board 'awarded' appellant some compensation. If the former, appellee's question or remark disclosed nothing that the jury did not already know; if the latter, then appellee was entitled to correct the false impression created by appellant.'

It is quite clear, we think, that the question went much farther than the pleading which was read to the jury. In Federal Underwriters Exchange v. Bickman, supra, the statement of counsel on voir dire and the pleading read to the jury disclosed the action of the Board fully as clearly as the quoted paragraph read in this case. In fact, the only thing that it did not disclose was the amount of the award. Texas Indemnity Insurance Co. v. Halliburton, Tex.Civ.App., 235 S.W.2d 499, loc. cit. 503, (w. r. n. r. e.). That it did not disclose the effect of the award was one of the grounds on which the Supreme Court based its affirmance. The late lamented Chief Justice Alexander said (138 Tex. 128, 157 S.W.2d 356):

'It will be noted, however, that while the statement here complained of did disclose that the suit had been brought by the insurance company to set aside the award of the Industrial Accident Board, it did not disclose what the award was. * * * That part of the petition above referred to, which was read to the jury, did not disclose the effect of the award of the Industrial Accident Board, and therefore the reading thereof presents no reversible error.'

Here the pleading read to the jury did not disclose the fact that the Board had made no award in favor of appellant. We incline to appellee's view that it did leave the impression that some award of compensation had been made to him. The question asked clearly and emphatically emphasized the fact that no award of compensation had been made to appellant. Counsel for appellee in asking the question could have had no other motive than to emphasize the fact that the Board had made no such award. Appellee practically admits that this was the motive in its brief, by its contention that the question was asked to refute the erroneous impression 'made by appellant's plea that an award' of compensation had been made. Unless counsel was justified in so doing under his counterpoint hereinafter discussed, the asking of the question constituted misconduct of counsel and requires a reversal if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. Chapin v. Putnam Supply Co., 124 Tex. 247, 76 S.W.2d 469; Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302, Com.App. opinion adopted; American Employers' Ins. Co. v. Kellum, Tex.Civ.App., 185 S.W.2d 113, loc. cit. 116, (4, 5) (w. r. w. m.); In other words, the applicable rule is that enunciated in the Chapin and Smerke cases, and not Rule 327 R.C.P., which is applicable to misconduct of the jury. Triangle Cab Co. v. Taylor, Tex.Civ.App., 190 S.W.2d 755, loc. cit. 760(7) affirmed 144 Tex. 568, 192 S.W.2d 143. We adhere to our rule in the...