Red Ball Motor Freight Inc. v. Cordova

• Decision Date: 21 January 1960
• Docket Number: No. 6286,6286
• Citation: 332 S.W.2d 753
• Court: Texas Court of Appeals
• Parties: RED BALL MOTOR FREIGHT, INC., et al., Appellants, v. Clifton CORDOVA et al., Appellees.

Page 753

332 S.W.2d 753

RED BALL MOTOR FREIGHT, INC., et al., Appellants, v. Clifton CORDOVA et al., Appellees.

No. 6286.

Court of Civil Appeals of Texas, Beaumont.

Jan. 21, 1960.

Rehearing Denied Feb. 10, 1960.

Vinson, Elkins, Weems & Searls, Houston, H. L. Edwards, Nacogdoches, for appellants.

Fulmer, Fairchild & Badders, McAllister & Benchoff, Nacogdoches, for appellees.

McNEILL, Justice.

Billy Herbert Cordova, appellee, as plaintiff below, sued the Red Ball Motor Freight, Inc., and Lonnie Alfred Steptoe, appellants, for damages growing out of personal injuries sustained in a collision which occurred December 2, 1955, between a car being driven westerly along State Highway No. 21 in Nacogdoches County and a truck owned by Red Ball Motor Freight, Inc., and driven easterly along said highway by its employee Steptoe. Since appellee was 18 years old at the time of the collision his father, Clifton Cordova, was a party plaintiff but the judgment eliminated him from which there is no complaint. The Hartford Fire Insurance Company intervened as plaintiff seeking recovery under subrogation provided under the insurance policy for damages to the car involved in the accident. While it is an appellee, no brief was filed in its behalf and 'appellee' hereinafter will be taken to mean Billy Herbert Cordova.

The case was tried to a jury and upon its verdict judgment was rendered in behalf of appellee in the sum of $45,490 and in behalf of Hartford Fire Insurance Company in the sum of $1,000 against appellants.

We are met at the threshold of this case with two motions made by appellee. The first is a motion urging that appellants have filed their brief in this court after the time provided by Rule 414, Texas Rules of Civil Procedure, and they failed to allege good cause for failing to file sooner. We have examined the motion and reply made thereto by appellants, and while it is doubtful whether appellants have set forth good cause for failing to sooner file their brief, the late filing has not delayed earlier submission of the cause in this court nor prejudiced appellee's opportunity for answering thereto. The motion to dismiss the appeal for failure to file appellants' brief in time is herefore overruled.

Appellee has also filed motion to strike appellants' Bills of Exception Nos. 2, 3, 4, and 5, which were included in a supplemental transcript and filed in this court May 8, 1959, urging that appellants failed to obtain proper extension of time in which to file them. While appellants have made an extensive reply to this motion, they have failed to urge any alleged errors in their brief that they contend were reflected by these Bills of Exception. Appellants therefore have waived any error that might have existed in these bills and appellee's motion is moot.

Passing to the merits of the appeal we find two points of error set forth in appellants' brief. The first point urges that the trial court erred in failing to grant appellants' motion for mistrial made during the voir dire examination of the jury panel, when in the presence of the panel one of appellee's attorneys, 'stated to said jury panel that the Honorable H. L. Edwards, and Tom Mooney, had been stating that the trial of this cause was not going to cost Appellant, Red Ball Motor Freight, Inc., anything.' We will set forth the pertinent parts of the various instruments appellants have used to bring forward this point in view of appellee's insistence that there is a fatal variance between their allegations and the proof thereunder. The statement of facts reflects that a motion for mistrial was made promptly upon the question addressed by counsel for appellee to a prospective juror * * * 'if he had heard the statements which had been circulated to members of the Jury Panel by Mr. H. L. Edwards, who is counsel for the Defendants in this cause and by Mr. Tom Mooney, that the outcome of this case would not cost Red Ball Motor Freight anything and that he, Mr. Vernis Fulmer, counsel for Plaintiffs would never spend any of Red Ball Motor Freight's money by reason of the outcome of this case,' urging he thereby indicated to all of the prospective jurors that some person other than Red Ball Motor Freight would pay any judgment which might be rendered against it in this cause. The amended motion for new trial assigns error of the court in failing to grant the motion for mistrial because plaintiff's attorney had '* * * stated to said jury panel that the Honorable H. L. Edwards, one of the attorneys representing the defendants in this cause, and Mr. Tom Mooney, whom the evidence showed to be the local terminal manager for defendant, Red Ball Motor Freight, Inc., had been stating that the trial of this cause was not going to cost defendant, Red Ball Motor Freight, Inc.' Appellants' first Bill of Exception brings forward the language actually used by Mr. Fulmer:

'Be It Remembered that upon the trial of the above entitled and numbered cause on the 9th day of June, 1958, while Mr. Vernis Fulmer, one of counsel of record for plaintiff, was conducting his voir dire examination of the jury panel, in the presence and hearing of the entire jury panel there assembled, asked a prospective juror whether he had heard Honorable Hosea Edwards or Mr. Tom Mooney going up and down the streets saying this boy, referring to plaintiff herein, Billy Herbert Cordova, would never spend any of Red Ball's money, the jury then being aware that the Honorable Hosea Edwards was counsel of record for defendants and Mr. Tom Mooney was local manager for Red Ball Motor Freight, Inc.'

Thus we have the record on appellants' first point and upon this record appellants urge that the statement or question on the part of appellee's counsel informed the Jury Panel from which the trial jury was selected that Red Ball Motor Freight was covered by liability insurance. Appellee counters this first point upon several grounds. He urges first that the record fails to indicate that the motion for mistrial was ever presented to and acted upon by the trial court. We have failed to find and have been cited to no part of the record indicating that this motion ever came to the attention of the court sooner than the time the amended motion for new trial was presented. We therefore think that appellants have failed to discharge their burden to show that the trial court was given timely opportunity to act upon the motion. In addition, no request was made to the court to instruct the panel not to consider the remark.

The above should dispose of the matter, but upon the view that appellants contend the implied reference to liability insurance was wilful and therefore error whether request for correction was made or not, we will further consider the question. As pointed out above, appellee urges that the description of the occurrence in the motion for mistrial and in the amended motion for new trial, and in appellants' first point, are not supported by what actually occurred as verified and reflected by the Bill of Exception above quoted, and for that reason we should not consider the point. While we do not think the connection between the allegations and the proof thereunder is all that is desired, for the present purpose we have assumed that appellants'...