Robbins v. Wynne

• Decision Date: 06 January 1932
• Docket Number: No. 1502-5789.,1502-5789.
• Citation: 44 S.W.2d 946
• Parties: ROBBINS et al. v. WYNNE.
• Court: Texas Supreme Court

44 S.W.2d 946

ROBBINS et al. v. WYNNE.

No. 1502-5789.

Commission of Appeals of Texas, Section A.

January 6, 1932.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Mrs. Mary Robbins and husband against R. L. Wynne. Verdict and judgment for defendant was affirmed by Court of Civil Appeals in 28 S.W.(2d) 225, and plaintiffs bring error.

Reversed and remanded.

Stewart & De Lange and Franklin & Blankenbecker, all of Houston, and Maco Stewart, of Galveston, for plaintiffs in error.

Ross, Wood, Lawler & Wood and R. Wayne Lawler, all of Houston, for defendant in error.

CRITZ, J.

This suit was instituted in the district court of Harris county, Tex., by Mrs. Mary Robbins, joined pro forma by her husband, against R. L. Wynne, to recover an interest in certain real property in Houston, Harris county, Tex., and for receivership and an accounting for rents. Trial in the district court with a jury resulted in a verdict and judgment for Wynne. On appeal, this judgment was affirmed by the Court of Civil Appeals at Galveston. 28 S.W.(2d) 225. Mrs. Robbins brings error. We shall hereafter refer to Mrs. Robbins as plaintiff, and Wynne as defendant.

It appears from the record that the plaintiff furnished defendant the sum of $9,750 for the purpose of purchasing the real property here involved. On the trial, it was the contention of the plaintiff that this money was furnished to the defendant, who was married to her niece, with the understanding and agreement that the property should be purchased in the joint names of the plaintiff and the defendant, but that the defendant had, without the knowledge or consent of the plaintiff, taken the title solely in his own name, and also was denying that plaintiff had any interest therein. Plaintiff's petition and testimony go into detail with reference to the above matters, but we think we have made a sufficient statement of the case from the plaintiff's standpoint to meet the purposes of this opinion.

The defendant, by his testimony and pleadings, contends that the money above mentioned was furnished to him by the plaintiff to buy the property in question, but that same was a gift, and that there was no understanding or agreement of any character that the plaintiff was to have any right, title, or interest therein, or that such property should be purchased in the joint names of the plaintiff and defendant. The answer of the defendant and his evidence go into detail with reference to the facts and circumstances of the transaction, which we do not deem necessary to detail here.

The opinion of the Court of Civil Appeals goes more into detail than we have with reference to the facts and issues of the case. We refer to that opinion for further statement.

Only one issue was submitted to the jury, which was: "Was it understood and agreed between Mrs. Robbins and R. L. Wynne at the time Mrs. Robbins delivered her check for $9,750.00 to Wynne, that Mrs. Robbins was to be the owner of one-half interest in the property being purchased from Phelps?" The jury answered the above issue: "It was not."

During the trial of the case, the defendant and some of his witnesses testified to certain matters which were corroborative of defendant's contentions. It also appeared that certain of these facts were known to a Mrs. Howard, a sister of defendant's wife, and a niece of the plaintiff. Mrs. Howard was not offered as a witness by either side, and no explanation was offered before the jury by either side for the failure to use Mrs. Howard as a witness.

With the record in the above condition, it is shown by proper bill of exception that, while defendant's counsel was making his argument to the jury after the charge had been read, he stated, as shown by the bill, "that he, counsel, did not put Mrs. Howard, a sister of defendant's wife, and a niece of the plaintiff, Mrs. Robbins, on the stand because Mrs. Howard had been a recent recipient of the plaintiff, Mrs. Robbins', bounty and that Mrs. Howard had told him, defendant's counsel, that she therefore did not wish to testify in the case."

The bill, with reference to the above matter, further shows that the above argument was not made in reply to anything that had been said by plaintiff's counsel. Also, the bill shows that when the above argument or statement was made the plaintiff's counsel, in open court, in the presence of the jury, objected thereto on the ground that such argument or statement was improper and outside the record; whereupon the defendant's counsel, at once, and before any ruling of the court, stated that he had not intended going outside the record and withdrew his statement, and requested the jury not to consider the same. Also, defendant's counsel requested the court to instruct the jury not to consider such remarks for any purpose, which the court accordingly did. We think the above transaction presents error, which must result in a reversal of this case. When we come to analyze what the jury might construe the statement to mean, we are compelled to the conclusion that they did understand from the statement that Mrs. Howard, who was a niece of the plaintiff, and who had very recently received bounties from the plaintiff, if put on the stand, would give testimony which would support and corroborate the testimony of the defendant and his witnesses. In fact, we think that the statement was tantamount to counsel telling the jury that Mrs. Howard would have given testimony supporting defendant's defenses if she had testified. Certainly, no court could say with any degree of certainty that the jury did not so understand the statement. It follows that counsel for defendant went outside the record and gave the jury evidence which they should have received, if at all, from the lips of the witness, and not as hearsay from the lips of counsel.

Furthermore, we do not think the error was of such a character that this court can say with any degree of certainty that counsel's acknowledgment of his error in the presence of the jury, and the court's instruction to disregard it, have rendered the error harmless. In fact, we think that a wrong has been done which was and is fatal to this trial.

The Court of Civil Appeals holds that the argument was error, even to such an extent that the counsel who made it so concluded, but the Court of Civil Appeals further holds that the argument, together with the other circumstances, does not show an error reasonably calculated to work prejudice to the plaintiff. The Court of Civil Appeals further holds: "Whether such argument was reasonably calculated to prejudice the jury is left largely to the discretion of the trial court in passing on the motion for new trial, and when, as in this case, the trial judge has exercised such discretion and overruled the motion, we are not prepared to hold, under the circumstances shown, that such discretion was abused. It is only when from the record on appeal it is clear that argument in violation of the rule above stated is reasonably calculated to prejudice the rights of the complainant that an appellate court is authorized to overrule the discretion exercised by the trial court in overruling the complaint." 28 S.W.(2d) 225, 229.

We are unable to agree with the Court of Civil Appeals in the above holding. In our opinion, when it becomes an issue of fact as to whether an alleged misconduct actually occurred, and the trial court hears evidence on such question and determines the issue, his finding and judgment should not be disturbed unless palpably wrong. When, as in a case like this, the improper argument and circumstances surrounding it are undisputed, we think the issue of injury is purely a law question. We think, further, that when counsel goes outside the record and gives the jury information that is calculated to injure the other side, it is misconduct which must result in a reversal, unless it clearly and affirmatively appears that no injury has been done. In other words, we hold that the same rule governs in such instances as governs where the jury itself is guilty of misconduct and hears evidence outside the record while it is deliberating on a verdict. M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508, 509; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765, 767; Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302 (Com. App. opinion approved).

In M., K. & T. Ry. Co. v. Hannig, supra, our Supreme Court had before it the question as to whether the admission of certain improper testimony presented harmless error. The Court of Civil Appeals (41 S. W. 196) had held such evidence improper, but the error in admitting same harmless. In passing on the issue involved and the rule of law which must apply in such matter, this court, speaking through Judge Gaines, said: "The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence. Since it does not so appear with reference to the testimony in question, the judgment must be set aside, and a new trial awarded."

The above-quoted rule clearly demonstrates that the Supreme Court meant to reject the rule applied by the Court of Civil Appeals in the instant case in so far as it applies to incompetent testimony, and we can see no difference between incompetent testimony heard direct from a witness and...