O'Rear v. Fruehauf Corp.

• Decision Date: 27 June 1977
• Docket Number: No. 75-3987,75-3987
• Parties: James M. O'REAR, Plaintiff-Appellant, v. FRUEHAUF CORPORATION, Defendant-Third-Party Plaintiff-Appellee. FRUEHAUF DISTRIBUTING COMPANY et al., Defendants, v. G. G. ESPINOZA et al., Third Party Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1304

554 F.2d 1304

James M. O'REAR, Plaintiff-Appellant, v. FRUEHAUF CORPORATION, Defendant-Third-Party Plaintiff-Appellee.

FRUEHAUF DISTRIBUTING COMPANY et al., Defendants, v. G. G. ESPINOZA et al., Third Party Defendants.

No. 75-3987.

United States Court of Appeals Fifth Circuit.

June 27, 1977.

Franklin D. Houser, Robert C. Scott, San Antonio, Tex., for plaintiff-appellant.

Michael M. Fulton, San Antonio, Tex., for defendant-third-party plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before MORGAN and RONEY, Circuit Judges, and KING ^*, District Judge.

JAMES LAWRENCE KING, District Judge:

In this appeal, the issue presented is whether defense counsel's repeated reference to a parallel state court proceeding, in deliberate disobedience of the trial court's order forbidding such reference, coupled with the judge's refusal to permit plaintiff's counsel to respond to these references in final argument, was harmless error. Finding that it was not, we reverse.

This is a products liability action for damages arising from injuries sustained by O'Rear when a tractor-trailer came uncoupled, crossed over into the opposite lane of traffic and collided with O'Rear's automobile. The tractor-trailer, owned by Haag and driven by his employee Espinoza, was coupled with a fifth wheel device manufactured by Fruehauf. To preserve complete diversity of citizenship, O'Rear sued only Fruehauf in this action. However, Fruehauf brought Haag and Espinoza into the case as third-party defendants on a negligence theory for indemnification and contribution. O'Rear had previously sued Haag and Espinoza in state court for negligence, and the state case was still pending at the time of the federal trial.

O'Rear contended that Fruehauf's fifth wheel device was improperly designed so as to permit it to "false lock," thereby misleading a reasonably prudent truck driver into the belief that the tractor-trailer was properly coupled and could not separate. Fruehauf's contention was that the device had not been properly coupled by the driver Espinoza, whose negligence thereby caused the accident.

Prior to trial, O'Rear's counsel (Houser) made a motion in limine ¹ asking that Fruehauf's counsel (Fulton) be prohibited from telling the jury anything about O'Rear's state court action against Haag and Espinoza. This motion was granted and the trial judge ordered Fulton not to mention the state case.

After plaintiff rested, Fulton called Haag as an adverse witness and attempted to impeach him by the use of his deposition in the state case. During this examination, Fulton made repeated references to "a lawsuit that is presently pending against you in San Antonio" and to "the other lawsuit." Houser objected to these references and reminded Fulton and the court of the ruling on the motion in limine. The objections were sustained and the court instructed Fulton to abide by the ruling. The jury was instructed to disregard Fulton's remarks. Thereafter, Fulton asked, ". . . Mr. Haag, what agreement, if any, do you have with Mr. Houser that if you will cooperate with him in this litigation against Fruehauf ." Houser again interrupted with an objection which was sustained by the judge, who again cautioned the jury to disregard the remark. Fulton continued to bring to the jury's attention the fact that there were two lawsuits pending by underscoring "this particular lawsuit, this lawsuit here in federal court in Austin." Again objections were made and sustained. Finally, at one point during Haag's examination by Fulton, Haag's counsel moved for a mistrial. This was denied by the court.

At the close of all the evidence, the third-party defendants moved for dismissal. Argument was heard on the motion outside the hearing of the jury. Fruehauf contended that, on the facts of this case, the negligence of Espinoza caused the accident, even though it agreed that the law compelled dismissal in that a defendant sued for strict liability in tort could not maintain a third-party complaint for indemnification and contribution.

Houser was concerned about the jury's reaction to the dismissal of Haag and Espinoza just before final argument in light of Fulton's comments that (1) there was a pending lawsuit by O'Rear against Haag and Espinoza in state court, and (2) that some kind of deal or agreement had been reached between O'Rear and the third-party defendants Haag and Espinoza concerning their "cooperation" in this suit. This "cooperation" involved their testimony that they were not negligent and that the tractor-trailer had been properly coupled, supporting O'Rear's theory that the accident was caused by faulty design. However, the clear implication was that they were now being released from the lawsuit by O'Rear in return for their favorable testimony. Houser urged the court to allow him to explain to the jury that there had been no deal and that O'Rear had nothing to do with Haag's and Espinoza's being dismissed from the case. Furthermore, Houser was concerned that Fulton would make use of the dismissal of Haag and Espinoza during final argument by alluding to the "deal."

The court denied Houser's request, granted the motion to dismiss, and instructed both counsel not to allude to the dismissal except that it would appear in the court's jury charges. In addition, the judge instructed counsel not to "allude to the state case, any kind of deal or anything else of that nature." Fulton assured the judge four times during this discussion that he would not bring up these matters in his final argument.

Contrary to those assurances and in direct violation of the judge's instructions, Fulton nonetheless told the jury that it was O'Rear who had let Haag and Espinoza out of the case:

Mr. Fulton: '. . . Now, I think in this case that the obvious fault is with the driver, Espinoza, and Haag for using this worn-out equipment on the road, and the driver for not getting it locked. I think that the driver there is no question that the driver and Haag, both were negligent for operating this trailer on the highways without the emergency breakaway. Remember Mr. Bentley drew the diagram, he said if the tractor had the type of brakes that would automatically come on when the tractor and trailer separated that the O'Rear car and the trailer would have stopped 125 feet apart and there wouldn't have been an accident. Can there be any question can there be any question that Haag and Espinoza are at fault? Is there any question as to whether or not Mr. Houser would just let Mr. Haag and Mr. Espinoza just go off without scot-free? Now '

Mr. Houser: 'Your Honor, we have had it for the last time. Now, I am moving for a mistrial at this particular juncture. Your Honor, This is the fifth time that it has been brought up.'

Mr. Fulton: 'I am going to explain.'

Mr. Houser: 'It is too late.'

The Court: 'No, it is too late. We don't want any explanation about that last statement. Read it back, that last statement something about why Mr. Houser let Mr. Haag and '

Mr. Fulton: 'No, sir.'

The Court: ' and Espinoza go scot-free, or something like that.'

The Court Reporter: ' "Is there any question as to whether or not Mr. Houser would just let Mr. Haag and Mr. Espinoza just go off without scot-free?" '

Mr. Fulton: 'Your Honor, I was going to explain '

The Court: 'No, you wait a minute. The jury is instructed to disregard that last statement, get it out of your mind and don't consider it for any purpose whatsoever, that last statement, about letting Haag and Espinoza go scot-free, so-and-so would do that.'

Mr. Fulton: 'Well, Your Honor, I will drop that. But, I was going to explain but I will forget that.'

The motion for mistrial was not specifically ruled upon but the case was submitted to the jury. In his charge to the jury, the trial judge gave the following instructions pertinent to the prejudicial remarks of counsel and the dismissal of Haag and Espinoza:

Statements and arguments of counsel are not evidence and must not be considered by you as such. Also, any evidence as to which an objection was sustained or which may have been stricken by the court must be entirely disregarded. . . . In reaching your verdict you are not to consider or be concerned with any claim or potential claim involving Elmer Haag or F. F. Espinoza.

On appeal, O'Rear asserts that his substantial right to a fair trial by an impartial jury was violated by Fruehauf's counsel's repeated subjection of the jury to prejudicial information in disregard of the district court's orders.

It is of course the duty of the trial judge to insure that all parties receive a fair trial. In discharging this duty, the trial judge must make rulings upon objectionable remarks by counsel and give appropriate cautionary instructions to the jury to disregard all prejudicial matter. The trial judge is "of necessity, clothed with a great deal of discretion in determining whether an objectionable question is so prejudicial as to require a retrial, . . . (and he) is in a far better position to measure the effect of an improper question on the jury than an appellate court which reviews only the cold record." Harris v. Zurich Insurance Co., 527 F.2d 528 (8th Cir. 1975).

A trial judge, when faced with a motion for mistrial based on the submission of prejudicial information to a jury, must determine whether the error is harmless or whether it affects the substantial rights of the parties within the meaning of Fed.R.Civ.P. 61....