Rice v. Schiller

• Decision Date: 01 June 1951
• Docket Number: No. 14334,14334
• Citation: Rice v. Schiller, 241 S.W.2d 330 (Tex. Ct. App. 1951)
• Parties: RICE v. SCHILLER et al.
• Court: Texas Civil Court of Appeals

Page 330

241 S.W.2d 330

RICE v. SCHILLER et al.

No. 14334.

Court of Civil Appeals of Texas, Dallas.

June 1, 1951.

Rehearing Denied June 29, 1951.

Willis & Lewis, Curtis White, all of Dallas, for appellant.

Burford, Ryburn, Hincks & Ford and Clarence A. Guittard, all of Dallas, for appellees.

CRAMER, Justice.

This is an action under the guest statute, Art. 6701b, Vernon's Ann.Civ.St., filed by Miss Helen Bryson (now Mrs. Less Schiller) and Miss Mozelle King. The two causes were first filed separately, but thereafter consolidated and tried together.

The parties will be here designated as in the trial court. The plaintiffs sought recovery of damages for personal injuries suffered by them while riding as guests in defendant's automobile when it collided with a tree. The collision occurred about 3:00 A.M. on July 22, 1948 in the City of Dallas. The jury's answers to the 58 special issues submitted are, in substance, as follows:

(1) Defendant drove his automobile upon Turtle Creek Boulevard while under the influence of intoxicating liquor, (2) in heedless and reckless disregard of the rights of plaintiffs, (3) proximately causing their injuries.

(4) Defendant's failure to stop at the stop sign on Hall Street at intersection of Turtle Creek Boulevard was done in heedless and reckless disregard of the rights of plaintiffs, (5) proximately causing their injuries.

(6) Defendant failed to yield the right of way to an eastbound automobile on Turtle Creek Boulevard approaching Hall Street, (7) in heedless and reckless disregard of plaintiffs' rights, (8) proximately causing their injuries.

(9) Defendant was racing at the time with another car, (10) in heedless and reckless disregard of the rights of plaintiffs, (11) proximately causing their injuries.

(12) Defendant was driving at a speed exceeding 30 miles per hour, (13) in heedless and reckless disregard of the rights of plaintiffs, (14) proximately causing their injuries.

(15) Was driving at a negligent speed in approaching the intersection, (16) in heedless and reckless disregard of plaintiffs' rights, (17) proximately causing their injuries.

(18) Failed to keep a proper lookout, (19) in heedless and reckless disregard of plaintiffs' rights, (20) proximately causing their injuries.

(21) Failed to keep his automobile under control, (22) in heedless and reckless disregard of plaintiffs' rights, (23) proximately causing their injuries.

(24) Failed to apply his brakes after leaving the roadway and before running into the tree, in heedless and reckless disregard of the rights of plaintiffs, (25) proximately causing their injuries.

(26, 27) That immediately prior to the time the automobile was driven over the curb of Turtle Creek Boulevard and it sideswiped the lamp post and struck the tree adjacent thereto, plaintiffs Helen Bryson Schiller and Mozelle King were each confronted by an emergency.

(28) That defendant's failure to slow down before hitting the tree was in heedless and reckless disregard of, and (29) proximately causing, plaintiffs' injuries.

(30, 31) That defendant's failure to sound his horn to warn the other car approaching from the west that he intended to drive through the stop sign at the intersection, was in heedless and reckless disregard of plaintiffs' rights, proximately causing their injuries.

(32, 33) That the collision as to plaintiffs was not the result of an unavoidable accident.

The jury found damages for personal injuries, (34) to Helen Bryson Schiller to be $14,000; (35) to Mozelle King $17,500.

(36, 45) That Helen Bryson Schiller and Mozelle King did not act with knowledge of the danger in riding in defendant's automobile, but (37, 46) each impliedly assented to the manner in which defendant drove his automobile prior to the collision. (38, 47) Each failed to protest as to the manner in which defendant was operating the automobile, (39, 48) but such failure to protest was not in heedless and reckless disregard of their own safety, and (40, 49) the proximate cause issued were not answered in accordance with trial court's instructions.

(41, 50) That prior to the collision both plaintiffs knew and realized that Paul H. Rice was intoxicated or under the influence of intoxicating liquor, and (42, 51) each thereafter had a reasonable and fair opportunity to leave his automobile after acquiring such knowledge; but (43, 52) their failure to leave defendant's automobile was not heedless and reckless disregard of their own safety. (44, 53) Proximate cause issues not answered in accordance with trial court's conditional instruction.

(54) That immediately before the collision defendant was not acting under emergency.

(55) That defendant Paul H. Rice's driving his car over the curb, sideswiping the lamp post and striking the tree, was not solely due to his momentary inadvertence or mere inattention.

(56) That immediately prior to the collision another car on Turtle Creek Boulevard was not in the act of passing defendant's automobile. (57, 58) Negligence and proximate cause issues not answered in accordance with trial court's conditional instruction.

After the jury's answers to the special issues were returned and filed, the court sustained plaintiffs' motion for judgment, overruled all other motions, and rendered judgment for $14,000 plus interest and costs in favor of Helen Bryson Schiller and for $17,500 plus interest and costs in favor of Mozelle King, to which judgment the defendant excepted, thereafter motion for new trial was overruled, and he duly perfected this appeal.

Appellant briefs 66 points of error; appellees eleven counter points of error.

Appellant by point 1 complains of the overruling of his motion to declare a mistrial immediately after appellees' counsel, in the presence of the jury, asked Helen Bryson Schiller if a certain statement he was questioning her about had been taken by an adjuster; appellant asserting such question suggested to the jury that defendant was protected by insurance.

The record reveals that after the plaintiff Helen Bryson Schiller had been placed upon the witness stand and examined by her attorney, defendant's attorney cross-examined her with reference to a statement she had signed; such statement being as follows: 'My name is Helen Bryson, 804 8th St., Dallas, Texas. Age 25, Single. I was with Mr. Rice and his party Wed. evening July 21, 1948. We all got to Pappy's Showland about 9 o'clock Wednesday evening. I guess it was about 1 A.M. when we left Pappy's. We drank moderately at Pappy's. I don't drink much myself. I suppose I didn't have over 2 drinks all evening. We went to the Variety Club from Pappy's. I don't recall how long we stayed at the variety Club. It wasn't too awfully long I don't think. Fron the Variety Club we went to Mr. Rice's office. We didn't stay there too awfully long. We left and we were going to take this girl home. I know we didn't stay at the office more than an hour. I don't know how fast we were going at the time of the accident because I had my head back against the seat. We made a left hand turn off Cedar Springs and it doesn't look like we could have been going too fast. I never did comment to Mr. Rice about his driving, telling him to slow down or anything and I don't recall hearing anybody else in the car saying anything about his driving. I don't recall another car passing us and cutting in front of us. I had my eyes closed and was resting my head on the back of the seat. I have read the above consisting of 2 pages and it is true and correct. / s/ Helen Bryson.'

Plaintiff's attorney, on her redirect examination, asked her if she signed the statement and she answered 'Yes.' He then questioned her further as follows:

'Q. In whose handwriting is that statement? Is that in your handwriting? A. No, sir.

'Q. Where were you at the time this statement was given? A. In Parkland Hospital.' Also, as follows:

'Q. Did Mr. Willis come out there and take this statement at that time? A. I don't believe he did.

'Q. Did Mr. Curtis White come out there and take it? A. No.

'Q. Did Mr. Doyle-I mean Mr. Rice come there and take it from you? A. No.

'Q. I just want you to tell me the man's name and nothing else, that's all I want to ask you. Do you know the man's name who came there and took this statement? A. No, I don't know his name.

'Q. Did he tell you he was an adjuster and investigator in this case or not?

'Mr. White: Now, Your Honor, we object to the--

'The Court: Sustained.

'Mr. White: We ask the jury be intructed not to consider it, and furthermore we desire to present a motion at this time.'

The court then heard a motion to dismiss the jury and to declare a mistrial. It developed that in addition to the proceedings above, plaintiffs' attorney had theretofore told the judge that he was dissatisfied with the jury, and on the hearing stated that he had told one of the defendant's attorneys that he thought the jury was probably a defendant's jury. He contended, however, on the motion to dismiss the jury, that his reference to an adjuster was inadvertent and also that he did not think insurance had been injected into the case. It also appears from the record that the defendant's attorney, before the evidence began, had requested the court to caution plaintiffs' attorney not to mention insurance before the jury, but that the court declined to do so, because, as he stated, Mr. Ford was an experienced attorney who knew very well that it was improper to mention insurance in the presence of the jury or draw out any information in the presence of the jury about insurance.

Under such record we must sustain the point. It is plain that the question was injected into the case by the plaintiffs' attorney in the presence of the jury. In the case of Jackson v. Edmondson, Tex.Civ.App., 129 S.W.2d 369, at page 372, the only reference to insurance was that the statement was taken by 'an adjuster.' The Court of Civil Appeals held such reference harmless. The Supreme...