Schroeder v. Brandon, 8084.
| Decision Date | 23 June 1943 |
| Docket Number | No. 8084.,8084. |
| Citation | 172 S.W.2d 488 |
| Parties | SCHROEDER et al. v. BRANDON et al. |
| Court | Texas Supreme Court |
In this case the trial court upon a special issue jury verdict awarded plaintiffs, Mrs. Schroeder and her minor son, a judgment for their respective damages sustained on account of the death of Mr. Schroeder (Mrs. Schroeder's husband) caused by a collision between a truck owned by M. B. Brandon and driven by Erwin Smith, and Schroeder's car. The Galveston Court of Civil Appeals, Mr. Justice Graves dissenting, reversed and remanded the case. 167 S.W.2d 599, 600; dissenting opinion, 167 S.W.2d 603.
The points upon which defendants sought a reversal of the case were (a) that inasmuch as the pleadings and evidence showed the deceased failed to stop and wait for the train to pass, the trial court erred in refusing to submit to the jury inquiries whether such failure was negligence, and a proximate cause, respectively, of the collision; (b) that inasmuch as the pleadings and evidence showed that Mrs. Schroeder failed to request her husband to stop before entering the highway, the trial court erred in refusing to charge the jury whether her failure to do so was negligence and a proximate cause of the collision; (c) that since the evidence supports a judgment for only $304 for hospital, doctors' and medicine bills on account of Mrs. Schroeder's injuries, that part of the judgment in her favor for $1,000 for such bills should be so reformed as to allow her only $304; and (d) that it was error for the trial court over defendants' protest, after the parties had closed, to recall the jury and counsel into open court and advised them that the two witnesses, Lathrop and Pierce, who had been called by defendants but had absented themselves from court, had returned and were in attendance upon the court and available for counsel for both sides if they desired to use them.
A majority of the Court of Civil Appeals reversed and remanded the cause on the point last stated. The ground alleged in the point as presented by defendants in their brief in the Court of Civil Appeals and sustained by that court, was that the trial court's announcement in the presence of the jury that the witnesses were available, was "unnecessary" and amounted to "an undue comment by the court on the weight of the evidence" and was "prejudicial" to defendants. Writ of error was granted plaintiffs on the ground that the majority of the court erred in sustaining the point.
The following is a brief statement of what happened in the presence of the jury prior to the occurrence complained of by defendants: The witnesses on Monday had been placed under the rule and instructed by the court to remain in the courthouse subject to call at any time by the sheriff. Wednesday afternoon after plaintiffs had rested Mr. Morris (representing defendants) asked the sheriff to call Mr. Lathrop who with all of the other witnesses had been placed under the rule when the trial began. The sheriff complied with the request but the witness was absent. Thereupon Mr. Morris said: "Your Honor, we have called four of the witnesses now and they are not here; they are under subpoena and they are supposed to be here; they were sworn in and put under the rule." At that time counsel for plaintiffs and defendants had finished the examination of several of the witnesses of the respective parties. Following plaintiffs' announcement that they rested, and the call of defendants' witnesses as detailed above, the court inquired of Mr. Morris, when it was ascertained that the witnesses were absent, whether he desired to rest. The following colloquy ensued:
Later Mr. Morris, after the court had waited until Mr. and Mrs. Siler had returned, put them on the stand and their examination was completed. The next day the following occurred:
Mr. Hightower then proceeded with his rebuttal testimony and when he had finished, again rested. The following occurred:
The next proceeding was in chambers at 1 o'clock the next day. The court there stated in substance to counsel for both sides that "on yesterday" March 26th, he had "recessed the jury" until 1 o'clock the next day, March 27th; that after Lathrop and Pierce had been called by defendants as witnesses and were found to have absented themselves from court, he had "issued an attachment for said witnesses and entered a fine of ten dollars each against them"; that the sheriff had thereafter informed him that the witnesses had left the county but would return on the night of March 26th, and had later informed him that the attachment had been served and that said witnesses were "in attendance upon the court" in his custody. Upon the court's advising counsel for both sides that he would announce to them in open court that the witnesses were in attendance "and available * * * as witnesses if they desired to place them upon the stand," Mr. Morris objected to the court bringing the witnesses "before the bar and tendering them." The court replied that he was not going to "bring them before the bar," that they were "in attendance under the rule." Further protesting the court's announced course of procedure Mr. Morris made it known that he did not want to state in the presence of the jury the objections to be incorporated in his bill of exceptions and was given leave, upon his request therefor, to state them in chambers. The objections and argument in support thereof were, briefly, that the statement which the court proposed to make in open court would be tantamount to a comment on the weight of the evidence and would prejudice the jury against defendants; that he in good faith had called the witnesses, including Lathrop, and that, "although the witness (Lathrop) * * * on the trial of the plea of privilege * * * * had testified in behalf of plaintiffs," he would have used the witnesses if they had been present when called; that he had no notice of the court's intention to recall the witnesses until after the evidence had been closed and the other witnesses had been excused; that if Lathrop and Pierce should testify against defendants he would be "without any right" to recall the other witnesses to impeach their testimony, or contradict it.
Mr. Hightower was given leave to incorporate in the bill by way of qualification a statement to the effect that both counsel "knew that the court had assessed the fines and issued the attachment and that the sheriff had reported back to the court that the witnesses had gone to Pasadena, and wouldn't be home until last night, and that * * * when plaintiffs' closed their rebuttal yesterday Mr. Morris * * * again * * * in the presence of the jury called these two witnesses as rebuttal witnesses * * * at a time when the court had already informed counsel that the sheriff had not been able to serve the attachment because they had gone to Pasadena * * *."
The court in overruling and qualifying the bill of exceptions stated that the witnesses "had disobeyed the instruction of the court; that while plaintiffs and defendants had rested and closed their evidence he notified both counsel `on yesterday' that the attachment would be served and the witnesses `would be present at one o'clock, March 27th' and that he would tender them to counsel in open court * * *." The court further stated that he had not up to that time, excused any witnesses for either plaintiffs or defendants from the rule and that if any were not present (other than Lathrop and Pierce) it had not been "by reason of the court excusing them from the rule, and they should be in attendance upon the court at this time; it being the court's intention, if either party desired to use said witnesses, to reopen the case and permit them to do so."
We deem it unnecessary to recount at any greater length what was stated in chambers and incorporated in the...
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