Standard Fire Ins. Co. v. Reese

• Decision Date: 06 June 1979
• Docket Number: No. B-7799,B-7799
• Citation: 584 S.W.2d 835
• Parties: STANDARD FIRE INSURANCE COMPANY, Petitioner, v. Arthur REESE, Jr., Respondent.
• Court: Texas Supreme Court

Page 835

584 S.W.2d 835

STANDARD FIRE INSURANCE COMPANY, Petitioner, v. Arthur REESE, Jr., Respondent.

No. B-7799.

Supreme Court of Texas.

June 6, 1979.

Thurlow & Hennessey, Edward J. Hennessey and Randall D. Wilkins, Houston, for petitioner.

Stevens F. Mafrige and George A. Sellnau, Houston, for respondent.

POPE, Justice.

The question presented by this appeal is whether plaintiff, Arthur Reese, Jr., sustained his burden to prove that a jury argument made by counsel for Standard Fire Insurance Company constituted reversible error in the absence of an objection or motion that the court instruct the jury to disregard the argument. The Industrial Accident Board had awarded Reese $1,120.00 for temporary total incapacity, $2,528.10 for permanent partial incapacity and $1,329.00 for medical expenses, a total of $4,977.10. Standard appealed, and the trial court rendered judgment for Reese on a jury verdict for the sum of $870.00 for total incapacity for the period from March 14, 1975, to June 10, 1975; medical benefits in the sum of $1,239.00, and interest in the amount of $179.91, for a total of $2,278.91. The judgment should have been for $2,288.91. Mr. Reese, the worker, appealed from that judgment, and the court of civil appeals reversed the judgment by reason of a jury argument. 567 S.W.2d 861. From our review of the whole record, we conclude that the argument by Standard's attorney was neither improper nor reversibly harmful. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Counsel for Standard Fire Insurance Company made this jury argument which is the basis for the reversal by the court of civil appeals:

But that won't make this claim valuable enough. So, we have to run in Dr. Buning. Enter Dr. Buning, April 8, 1975, approximately three and a half weeks after this incident. Dr. Buning in Spring Branch, Mr. Reese, Astrodome. He drove by a thousand doctors between the Astrodome and Spring Branch. Aren't you curious as to why he went to Dr. Buning? Aren't you curious as to why Mr. Mafrige sent him to Dr. Buning? Does not a sham or a plot evolve out of all of this? What does Buning do then? Let's send him over to old Mort, give him the old 1-6-8-9-11-15 treatment. That's good. That looks good on paper. We can pump on him for about six or eight weeks, build those medical bills up real high. The higher the medical bills, obviously he has got to be hurt if he has got all of those medical bills. It will look good in front of a jury. Does that not make itself abundantly clear to you? Does that not eat away at the credibility of this entire situation?

Reese's counsel neither objected to the argument nor asked the court to give any instruction to the jury about it. Standard's trial theory and its argument was that Reese had incurred unnecessary charges for physical therapy in the amount of $1,458.00 even though the treatments were doing him no good. Standard attacked the credibility of the worker's claim in light of the evidence that Reese resumed regular employment a short time after his initial treatment, worked full time and earned more money than he had ever earned before. Standard's counsel also argued that two doctors had examined Reese and released him as able to return to work, and those two doctors had not testified. He then argued that the evidence showed that Reese received therapy from April to June of 1975, was released from further treatments, but resumed those unnecessary treatments seven months later for the purpose of building up the amount of the medical expenses. He questioned whether Reese had any disability at all, and he argued that the decision in the case would turn upon Reese's credibility. He then continued,

Maybe you all feel like I am rationalizing. Maybe I am. But Mr. Reese, when he tells you he is hurt and can't do this and can't do that and will never ever be the same again, maybe Mr. Reese really believes that. And if he does, then he is telling the truth. But it is not credible, folks. It is not credible when you put all of these facts together, when you put in the Mafrige- Bachynsky-Buning combination

MR. MAFRIGE: Your Honor, I object. There is no evidence of any combination and he keeps making inferences and slanderous remarks and I strenuously object. He is outside the record.

THE COURT: You may reply to that on closing argument.

The argument was not improper because there was direct evidence, as well as inferences from the evidence, which supported the argument. Mr. Reese testified that he was on his job on March 14, 1975, performing his work as a cement worker. He was standing in about six inches of cement when he sustained a "pop" in his back. Another employee helped him step from the cement, and Reese's employer immediately had him taken to the Torno Medical Center that was located in Pasadena near the job site. Dr. Torno examined and treated Reese for about a month. He prescribed physical therapy treatments which Reese received for an estimated five or ten times. Dr. Torno, in turn, referred Reese to a Dr. Podniac, an orthopedic surgeon. Both of those doctors, after about six weeks, dismissed Reese as able to return to work. At that point, Reese went to see Dr. Eric Buning, whom he not previously known.

Dr. Buning's office was at that time located in Spring Branch. Reese testified that he went to see Dr. Buning because his lawyer sent him. Mr. Mafrige was his lawyer. Reese also testified that he lived in South Park near the Astrodome. When Mr. Mafrige was questioning Reese, his client, there was this exchange:

"Q. How was it you got to Dr. Buning's office?

"A. You sent me to Dr. Buning.

"Q. Your lawyer did?

"A. Yes."

Reese was hurt on Friday, March 14, 1975; he went to see his lawyer four days later. There are three pharmacy bills in evidence. They are in the name of Arthur Reese but have typed on each of them the notation, "bill Steven F. Mafrige," who was Reese's attorney.

Dr. Buning, after examining Reese, prescribed physical therapy which he detailed on a printed prescription form. The prescription that Dr. Buning signed was not on Dr. Buning's prescription form; it was on the prescription bearing the name of Mort Moriarty, L.P.T. (licensed physical therapist). Mr. Moriarty had his offices in the same building in which Dr. Buning was located. Mr. Moriarty testified that he and Dr. Buning were personal friends. Dr. Buning "would just come by and visit the office. He had time to kill," he said.

Dr. Buning wrote two different prescriptions for physical therapy. The first one was for the treatments from April 8, 1975, until June 9, when they were terminated on orders from Dr. Buning. Dr. Buning wrote a second prescription about seven months later on January 5, 1976, calling for daily treatments for two to four weeks. On that same date Reese resumed his treatments, and they continued until March 5, 1976. By that time the bill for physical therapy had grown to the amount of $1,458.00.

Dr. Buning died sometime about February, 1976, and Dr. Nicholas Bachynsky took over his office and patients. He saw Reese on March 2 and March 10, made an examination but prescribed no treatment. Dr. Bachynsky testified that he did not prescribe therapy treatments, because "I don't think it would have any benefit to him." Reese did not return to Dr. Bachynsky until November 2, 1976, and then, according to the evidence, because "The lawyer wanted him to come by for re-evaluation." Dr. Bachynsky's total charges amounted only to $50.00. He expressed the opinion that Reese suffered from pain caused by a nerve root impingement and also degenerative arthritis, that Reese did not have any symptom that could be called an objective one, that every symptom of the injury required his reliance upon the credibility of the patient, and that in his opinion, Reese had a sixty percent permanent disability. That opinion statement is the only evidence in the record of the extent of Reese's incapacity.

The jury argument about Mr. Moriarty's therapy treatments cannot be understood except in the context of this additional evidence. Mr. Moriarty testified that his billings listed twenty-one different kinds of therapy which he was capable of providing. They were numerically coded at the bottom of each statement. For example, the treatments he gave Mr. Reese were coded in this fashion, as he explained:

"Q. Like No. 1 is hot packs. No. 6 is ultrasound. No. 8 is massage. No. 9 is electrical stimulation. No. 11 is therapeutic exercise. And No. 15

"A. Pelvic traction.

"Q. Intermittent pelvic traction, right. Now it looks to me like you gave him the 1-6-8-9-11-15 treatment every time he was there.

"A. Because that's what was prescribed."

Standard's defense was that Reese's claim was a weak one and had almost no medical basis. Two physicians released him as able to do work, and the evidence showed that he returned to work in 1976, worked continuously as a cement worker and earned more than he had ever earned before. Standard urged that the only evidence of any incapacity rested upon Reese's own subjective statements, as Dr. Bachynsky acknowledged.

From this record, we conclude that there was direct evidence of a close relationship between Reese's attorney, Mr. Mafrige, and Dr. Buning, Morton Moriarty, and Dr. Bachynsky. Whether by cross-examination or advocacy, the relationship between witnesses and a party is properly weighed, evaluated, and tested. It is the jury's function to evaluate the evidence in that context.

Standard's argument that Reese "drove by a thousand doctors between the Astrodome and Spring Branch" to see Dr. Buning was not improper. Hyperbole has long been one of the figurative techniques of oral advocacy. Such arguments are a part of our legal heritage and language. Shakespeare wrote about "a thousand blushing apparitions" and "a thousand innocent shames," in Much Ado About Nothing. In the Tempest he wrote, "Now would I give a thousand...