Sell v. C. B. Smith Volkswagen, Inc.

• Decision Date: 21 January 1981
• Docket Number: No. A,A
• Citation: 611 S.W.2d 897
• Parties: Evelyn SELL et al., Appellants, v. C. B. SMITH VOLKSWAGEN, INC., et al., Appellees. b2385. (14th Dist.)
• Court: Texas Court of Appeals

Page 897

611 S.W.2d 897

Evelyn SELL et al., Appellants, v. C. B. SMITH VOLKSWAGEN, INC., et al., Appellees.

No. Ab2385.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Jan. 21, 1981.

Rehearing Denied Feb. 11, 1981.

Sidney Ravkind, Mandell & Wright, Houston, for appellants.

Larry Funderburk, Funderburk & Funderburk, F. Scott McCown, Gerald P. Coley, Vinson & Elkins, Frank M. Bean, Bean & Manning, Houston, for appellees.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

JUNELL, Justice.

This is an appeal from a take nothing judgment rendered in a personal injury action arising from an automobile accident which occurred when the Volkswagen automobile in which appellants were traveling went out of control following the blow-out of one of its tires. The action was based on theories of negligence, products liability, and breach of warranty. Trial to a jury resulted in the take nothing judgment upon finding appellants to have been contributorily negligent and no negligence, breach of warranty or sale of a defective product on the part of appellees. Appellants' primary contention on appeal is that evidence regarding the political beliefs of Appellant Evelyn Sell was improperly admitted and so prejudicial to appellants' case as to cause the rendition of an improper judgment. Additionally they assert error in the court's refusal to submit certain special issues and in submission of the issue of contributory negligence. We affirm.

On August 20, 1972 appellants Evelyn Sell, Eric Sell and Katherine Stallworth were traveling from Oberlin, Ohio, to Houston, Texas, when the 1971 Volkswagen in which they were traveling blew a tire, went out of control and crashed near Memphis, Tennessee. Mrs. Sell was left a paraplegic; her son, Eric, suffered serious brain damage and Miss Stallworth sustained a broken hip as a result of the accident. Mrs. Sell was the owner of the car which had been purchased from Appellee C. B. Smith Volkswagen, Inc., and serviced according to the warranty maintenance schedule by Appellees Mel Croan, Inc. and C. B. Smith. Miss Stallworth was driving the auto at the time of the accident. Appellants were returning from a Socialist Workers Party Convention. Highway patrol investigation revealed the accident was caused by a blow-out of the right rear tire.

Appellant contended at trial that the blow-out was due to improper camber (misalignment) wear of the tire and alleged in their petition negligence in failing to properly inspect and test the vehicle, to properly warn of the dangers inherent upon its use, and in breaching express and implied warranties that the car was safe for normal use and would continue to be safe if serviced in accordance with the prescribed maintenance program. Experts for appellants testified the improper camber position had existed for virtually the life of the auto and would have been visibly apparent at six and twelve thousand miles. The car had last been inspected at 14,700 miles.

The defense contended the primary cause of the tire wear pattern was maladjusted toe setting, which its experts testified would have occurred after twelve thousand miles, the result of hitting a road hazard such as a pothole. They also alleged contributory negligence on the part of appellants in failing to inspect the tires prior to traveling in the vehicle.

In their first point of error appellants claim that the cross-examination of the appellant, Evelyn Sell, regarding her political beliefs and affiliation with the Socialist Workers Party was improper and so prejudicial as to require that the verdict be set aside. We are of the opinion that this complaint has been waived by reason of a number of things which occurred during the trial.

Before the voir dire examination of the jury panel began, the trial court sustained a motion in limine that the defendants be prohibited from offering proof that the plaintiffs belonged to the Socialist Workers Party or were Socialists. The court's ruling was without prejudice to defendants' right to raise the issue later outside the presence of the jury for further court review and ruling. During the voir dire examination of the jury panel the appellants' attorney told the panel that the evidence would show that Evelyn Sell was very active in politics and then asked whether anyone on the panel would hold it against her if the evidence showed that she had assisted in organizing and that sort of thing. When one member of the jury panel asked "What kind, I mean for our government or against our government?", the attorney replied, "for our government, I can assure you but ... we don't want to get into the question of ... any particular politics." Then the appellants' attorneys stated, "You understand we don't want to go into parties is really what the problem is I suppose."

In our opinion the injection of Mrs. Sell's political beliefs and activities into the trial of the case was done by the appellants' own attorneys, not by the appellees; at the very least, it was invited by appellants' counsel in his examination of the jury panel. When one injects an improper issue into a law suit, he can not be heard to complain when his testimony is rebutted by other improper evidence. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App. Tyler 1964, writ ref'd n. r. e.).

Appellants argue that because appellants' attorney was not a witness in the case, his statements on voir dire examination of the jury panel did not constitute evidence and therefore appellees were not entitled to cross examine Mrs. Sell about the matters. We disagree. If appellants' argument were sound, attorneys could make any statement or declaration to the jury panel during voir dire and yet their clients would be completely immune to examination designed to determine the truth of such statement.

Also, for another reason, appellants have waived any error concerning the cross-examination of Mrs. Sell. During such cross-examination the attorney for one of the appellees outside the presence of the jury sought the court's permission to interrogate Mrs. Sell concerning the truth of her attorney's statement during voir dire examination assuring the jurors that Mrs. Sell's political beliefs were for our form of government. Mrs. Sell's attorney responded by stating, "I have no objection to that, your Honor. You step right in, Mr. Coley." By this statement appellants expressly waived any objection to such cross-examination and any error on the part of the trial court in allowing such cross-examination. Consolidated Underwriters v. Pitman, 388 S.W.2d 315 (Tex.Civ.App. Beaumont 1964, no writ); and Kempner v. Beaumont Lumber Co., 20 Tex.Civ.App. 307, 49 S.W. 412 (Tex.Civ.App. 1899, writ denied).

Also under their first point of error appellants contend that the trial court erred in permitting cross-examination of Mrs. Sell concerning her pleadings in a then-pending law suit she had filed against the Austin Independent School District. In that suit she sought damages for loss of her wage-earning capacity by reason of alleged wrongful discharge of Mrs. Sell following reports by the F.B.I. to the Austin Police Department, relayed to the School Board, to the effect that Mrs. Sell was a political activist in the Socialist Workers Party.

We hold that the cross-examination concerning her pleadings in that suit were admissible as admissions against interest in connection with Mrs. Sell's claim that her inability to pursue her teaching career and the consequent loss of earnings and earning capacity resulted from the auto accident and from no other cause. Pleadings in other actions which contain statements inconsistent with the party's present position are receivable as admissions. St. Paul Fire and Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962); Bolin Oil Co. v. Staples, 496 S.W.2d 167 (Tex.Civ.App.1973); Bonham v. Baldeschwiler, 533 S.W.2d 144 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n. r. e.).

There is another reason why appellants' first point of error is not good. Both appellees pled that the negligence of each plaintiff was imputed to the others under the doctrine of "joint venture." On this issue appellees' burden was to prove that the three appellants had a joint interest in the object and purpose of the trip and an equal right, express or implied, to direct and control each other in the operation of the vehicle. The cross examination of Mrs. Sell concerning the purpose of the trip and the nature of the conference in Oberlin, Ohio, was proper on the "joint venture" issue. In that cross-examination Mrs. Sell testified that she attended the Oberlin, Ohio,...