Sfair v. Adair, 11973.

• Decision Date: 14 September 1949
• Docket Number: No. 11973.,11973.
• Citation: 223 S.W.2d 648
• Parties: SFAIR et al. v. ADAIR et al.
• Court: Texas Court of Appeals

Page 648

223 S.W.2d 648

SFAIR et al. v. ADAIR et al.

No. 11973.

Court of Civil Appeals of Texas. San Antonio.

September 14, 1949.

Rehearing Denied October 12, 1949.

Schlesinger, Goodstein & Semaan, San Antonio, Chas. J. Lieck, San Antonio, for appellants.

Eskridge & Groce, San Antonio, Warren & Groce, Corpus Christi, Reese Wade, Beeville, for appellees.

W. O. MURRAY, Justice.

This suit for damages grew out of a collision between a passenger automobile driven by Fred Sfair and a truck driven by Drex Loman and owned by Wick Adair. The collision occurred on December 12, 1947, in the town of Tuleta in Bee County, Texas. The car driven by Fred Sfair was traveling from San Antonio towards Corpus Christi and in a southerly direction, while the truck driven by Drex Loman had been traveling in a northerly direction along the highway, but had pulled into a filling station on the left-hand or east side of the highway, and at the time of the collision was traveling more or less diagonally across the highway from the west side to the east side. As a result of the collision Mrs. Julia Sfair, a passenger in the car, was badly injured and thereafter died as a result of her injuries. Jessie Tanos, another passenger in the car, was injured and the driver of the passenger car, Fred Sfair, was also injured. The plaintiffs in the case were Fred Sfair, Jessie Tanos, and the heirs of Julia Sfair. Trial was had to a jury and upon their findings judgment was rendered in favor of the defendants, Drex Loman and Wick Adair. From this judgment the plaintiffs below, who are the appellants here, have prosecuted this appeal.

Appellants' first complaint relates to the alleged improper argument of the attorney for the appellees. It appears from the record that the first witness called to the stand by appellants was Drex Loman, the driver of the truck. He was called as an adverse witness and gave evidence tending to exonerate himself from having negligently caused the collision, and also tending to convict Fred Sfair, the driver of the passenger car, of contributory negligence. When appellants called Drex Loman to the witness stand the attorney for appellees conferred with the trial judge and opposing counsel out of the hearing of the jury, and informed the court that Drex Loman had twice been convicted of felonies in the State of Oklahoma and requested the trial court to instruct the attorneys for appellants not to question Drex Loman concerning these matters in the presence of the jury. The attorneys for appellants insisted upon their right to so question Drex Loman. The attorney for the appellees asked the trial court to withhold his ruling upon the matter so that he might look into the question further, which the court agreed to, and attorneys for appellants were instructed not to question Drex Loman concerning his convictions until the matter was fully gone into. Later attorneys for appellants again insisted upon the right to so question Drex Loman and the matter was again deferred. Ultimately, after all the testimony was in, the trial judge ruled that the attorneys for appellants might ask Drex Loman if he had been convicted of felonies in Oklahoma, but could not go into the matter any further. Attorneys for appellants insisted that they be permitted to show that Drex Loman had been convicted of hog theft in the State of Oklahoma and been given two years in the state penitentiary; that he had later been convicted of manslaughter in the same state and given twenty-five years in the penitentiary; that he was out on parole from the state penitentiary of Oklahoma at the time he was driving the truck which collided with appellants' car, and that since said time his parole had been revoked and he had been returned to the penitentiary and had been there ever since, except that he had been paroled for the purpose of permitting him to come to Beeville to appear at the trial which is involved in this appeal. However, the trial judge ruled that appellants' counsel would only be permitted to show that Drex Loman had been convicted of hog theft and the offense of manslaughter, and that no further details could be gone into. Drex Loman was then put back upon the witness stand and, in answer to questions from appellants' attorneys, admitted that he had been so convicted of these two offenses in the State of Oklahoma.

Walter Groce, Esq., attorney for appellees, while making the closing argument to the jury, made the following statement, to-wit:

"You know, I think bringing out that evidence demonstrates the weakest spot in the plaintiffs' case, because it indicates, to my mind, that they have these other witnesses here to testify in the case, but they call this poor old Indian boy from Oklahoma and put him on the stand. Now, I don't know what they put him on for in the very beginning, but it finally develops that their main purpose is that they want to create in the minds of this jury a prejudice against Drex Loman because he got into this trouble some 10 or 11 years ago, and * * *."

Appellants' attorneys objected to the argument as being improper and prejudicial, and that it was improper for appellees' counsel to belittle and criticize plaintiffs for introducing material and competent testimony, which objection was overruled by the court. Then, continuing, the attorney for appellees presented the following argument:

"All right, gentlemen, now, then, if I am wrong in it, what other purpose could they have in putting Drex Loman...