South Austin Drive-In Theatre v. Thomison

• Decision Date: 22 November 1967
• Docket Number: DRIVE-IN,No. 11534,11534
• Citation: 28 A.L.R.3d 911,421 S.W.2d 933
• Parties: SOUTH AUSTINTHEATRE et al., Appellants, v. Michael D. THOMISON, a minor et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 933

421 S.W.2d 933

28 A.L.R.3d 911

SOUTH AUSTIN DRIVE-IN THEATRE et al., Appellants, v. Michael D. THOMISON, a minor et al., Appellees.

No. 11534.

Court of Civil Appeals of Texas Austin.

Nov. 22, 1967.

Rehearing Denied Dec. 13, 1967.

Clark, Thomas, Harris, Denius & Winters, Donald S. Thomas, John Coates, Mary Joe Carroll, Long, Aronson & Coleman, Tom Long, Dean Moorhead, Austin, for appellants.

Paul D. Jones, Byrd, Davis, Eisenberg & Clark, L. Tonnett Byrd, Tom H. Davis, Don L. Davis, Austin, for appellees.

O'QUINN, Justice.

This is tort action for damages growing out of personal injuries to Michael D. Thomison, a six-year-old boy, whose left leg was severed by the rotary blade of a riding power mower.

Plaintiffs in district court were Michael and his father, Leland C. Thomison. Defendants were Edward W. Joseph, doing business as South Austin Drive-In Theatre; Lester L. Kotrla, and employee of the theatre who was operator of the mower when the injury occurred; and Gilson Bros. Co., a Wisconsin corporation, manufacturer of the mower. The accident occurred on the theatre grounds during daylight hours early in April, 1965.

The cause went to trial before a jury October 3, 1966. Upon answers to special issues returned October 13, the trial court entered judgment November 10, 1966, for damages in the amount of $117,456.06, against all defendants jointly and severally. Joseph and Gilson Bros. Filed motions for rehearing which were overruled January 5, 1967, and they have appealed.

Appellant Joseph seeks an award of full indemnity over against Gilson Bros., which was denied by the trial court, or, in the alternative rendition and remand of the cause.

Appellant Gilson Bros. argues its right to judgment for full indemnity against Joseph which the trial court denied, and seeks rendition of judgment in its favor, or, in the alternative, remand of the case.

We affirm the judgment of the district court. We decline to modify the judgment to provide indemnity over against either appellant.

Appellant Joseph does not dispute that there is sufficient evidence to support each of the jury's findings as to negligence and proximate cause. This appellant's appeal is predicated upon two points. The first point is based upon voir dire examination of the jury panel by counsel for plaintiffs below during which 'the matter of liability insurance' was brought up, and the second point is a contention for full indemnity against Gilson Bros.

Appellant Gilson Bros. has assigned nine points of error. Point one is directed at the voir dire examination complained of by Appellant Joseph. Points two through eight pertain to evidentiary or special issues matters. Point nine assigns error in refusal of the trial court to award Gilson Bros. full indemnity over against Joseph.

We will examine and dispose of all assignments under three headings and in the order stated: (1) The voir dire examination of the jury panel, (2) full indemnity over against another appellant, and (3) evidentiary and special issues matters.

Appellant Joseph states his position on the voir dire examination in this manner:

'Judgment against this appellant was entered by the trial court solely upon the basis of the jury's finding that at the time of Mike's injury, Kotrla was acting within the scope of his employment. The finding on that issue was, in all reasonable probability, influenced, to the detriment of this appellant, by the fact that counsel for appellees during the course of his voir dire examination of the jury panel deliberately and emphatically brought the matter of Liability insurance before the jury.' (Emphasis added).

Gilson Bros. contends 'it was the victim of Repeated insinuations by counsel for appellees that Gilson Bros. was Protected by indemnity insurance.' (Emphasis added).

We are unable to find from the record that counsel for appellees at any time 'brought the matter of liability insurance before the jury,' as asserted by Joseph. Nor do we find any insinuation by counsel for appellees that Gilson Bros. 'was protected by indemnity insurance,' as Gilson Bros. avers.

The record presents the entire voir dire examination of the jury panel by counsel for all parties. Counsel for appellees examined the panel row by row, and individually in a number of instances, upon the question, 'Has anyone on the first row ever, or any of your relatives or close friends or next door neighbor, for instance, ever been connected with the Insurance industry?' (Emphasis added).

The entire record of voir dire examination by all counsel consists of 112 pages. Examination by counsel for appellees, together with his statement to the panel, is recorded on 88 pages. That part of the examination pertaining to possible connection 'with the insurance industry' consists of eight pages. It appears that the entire examination of the panel by counsel for appellees took approximately two hours, of which 11 or 12 minutes were devoted to the inquiry about possible connections with 'the insurance industry.'

Throughout this examination no person was asked about connection with any named insurance company. Counsel's inquiry was not directed to any type of insurance, such as casualty, but only to connection with the 'insurance industry,' in whatever capacity. At no time during this phase of the voir dire examination did counsel or any member of the panel say anything about insurance as protection, or the possibility that insurance was or was not protecting any party to the suit.

Counsel's examination of the panel on this matter is set out in full as follows:

'Q Has anyone on the first row ever, or any of your relatives or close friends or next door neighbor, for instance, ever been connected with the insurance industry? Anyone on the first row?

MRS. HILL: I had a neighbor, who left last week, who was with an insurance company.

MR. BYRD: What was his name?

MRS. HILL: Quirk; he moved to San Antonio.

MR. BYRD: Do you know what kind of business he was in?

MRS. HILL: I don't know, but some kind of insurance. They were a young couple.

MR. BYRD: Thank you, ma'am. Anyone else on the first row? Mr. Bauer?

MR. BAUER: A next door neighbor.

MR. BYRD: Who is that?

MR. BAUER: Charley Henderson; an insurance agency.

MR. BYRD: Does he sell insurance?

MR. BAUER: Yes, sir. I think it is mostly road contractors' bonds.

MR. BYRD: Do you fell your relationship with your neighbor would affect you in this case in any way?

MR. BAUER: No.

MR. BYRD: All right. Is that the only one you know? Now, he is an agent, you say?

MR. BAUER: Yes, sir.

MR. BYRD: He sells various different kinds of insurance? All right. Anyone else on the first row? Anyone on the second row, either you, your relative, a real close friend or a close neighbor that has any connection with the insurance industry. All right, sir. Mr. Rincon?

MR. RINCON: I work with an insurance company.

MR. BYRD: What company is it, sir?

MR. RINCON: National Western Life.

MR. BYRD: Selling life insurance exclusively?

MR. RINCON: No, sir. I do advertising there.

MR. BYRD: I see. Other than that, have you had any connection?

MR. RINCON: No, sir.

MR. BYRD: Anyone other than Mr. Rincon on the second row? On the third row? Mr. Grace.

MR. GRACE: I have a son who is an insurance salesman, with John Hancock.

MR. BYRD: John Hancock--they sell mostly life insurance?

MR. GRACE: Right.

MR. BYRD: And hospitalization? Would that affect you in deciding this case?

MR. GRACE: I don't think so.

MR. BYRD: Anyone else on the third row? Mrs. Christian?

MRS. CHRISTIAN: I have a son-in-law who is a special agent for an insurance company--fire insurance.

MR. BYRD: Do you know what company?

MRS. CHRISTIAN: Gulf.

MR. BYRD: What do his duties entail,--do you know?

MRS. CHRISTIAN: It is fire insurance. I don't really know what he does, but he goes around and sees about how much damage is done on fires.

MR. BYRD: He adjusts the loss after the fire has occurred?

MRS. CHRISTIAN: Yes.

MR. BYRD: I see. To see how much damage the fire cost to pay whatever--

MRS. CHRISTIAN: Yes, sir.

MR. BYRD: All right. Thank you, Mrs. Christian. Someone else raise their hand? Mr. Lyman?

MR. LYMAN: I sell life insurance.

MR. BYRD: You sell life insurance? For what company?

MR. LYMAN: Southern Life.

MR. BYRD: All right. Any other connection other than that?

MR. LYMAN: No.

MR. BYRD: Anyone else on the third row? Anyone on the fourth row? On the fifth row? Mr. Geraghty?

MR. GERAGHTY: I represent Northwestern National Group, National Automobile Casualty Insurance Company of New York.

MR. BYRD: All right, sir; in what capacity?

MR. GERAGHTY: As a representative, agent; recording agent.

MR. BYRD: All right. How long have you been in that capacity with that company?

MR. GERAGHTY: Oh, for many years. I guess seventeen or eighteen years.

MR. BYRD: Thank you very much, sir.

MR. GERAGHTY: Before that I had my own company.

MR. BYRD: Your own agency, or company?

MR. GERAGHTY: Company.

MR. BYRD: All right, sir; thank you, sir. Anyone else on the back row? Mr. Castillo?

MR. CASTILLO: Jack Puryear is a very close personal friend.

MR. BYRD: Do you work for that agency?

MR. CASTILLO: No, he is just a very close personal friend.

MR. BYRD: That is Mr. Jack Puryear of that agency?

MR. CASTILLO: Yes. I believe that is life insurance. And Mr. Nash, who sells life insurance, is a very close friend.

MR. BYRD: Would either of those gentlemen, either Mr. Puryear or Mr. Nash, is your relationship such that you feel it would influence you in this case?

MR. CASTILLO: No, sir.

MR. BYRD: All right, sir; thank you very much. Anyone else? Mrs. Hill?

MRS. HILL: I am secretary to the Casualty Insurance Commissioner of the State of Texas.

MR. BYRD: Did you ever work for any other company, other than the State?

MRS. HILL: Well, I have worked in an insurance agency.

MR. BYRD: What agency is that?

MRS. HILL: But it has been a long time ago; not here.

MR. BYRD: What agency was that?

MRS. HILL: Well, in Seymour, Texas, for Manley and...