Sugarland Industries v. Daily, 1835-7540.

Citation143 S.W.2d 931
Decision Date30 October 1940
Docket NumberNo. 1835-7540.,1835-7540.
CourtSupreme Court of Texas

The Court of Civil Appeals reversed the judgment of the district court in favor of plaintiff in error and remanded the cause on account of statements made by plaintiff in error's counsel in his argument to the jury. 124 S.W.2d 199.

Defendant in error, Daily, sued plaintiff in error, Sugarland Industries, for damages by reason of personal injuries suffered by his wife in a collision on a public highway between an automobile driven by Mrs. Daily and a truck owned by plaintiff in error and operated by its agent. Liability was alleged under the doctrine of discovered peril, as well as on account of specific acts of primary negligence. Plaintiff in error pleaded contributory negligence. The jury acquitted the truck driver on all issues of primary negligence and found that Mrs. Daily operated her automobile at a rate of speed in excess of 45 miles an hour and that such rate of speed was a proximate cause of the collision. A negative answer was given to the issue presenting discovered peril as a ground for recovery.

The bill of exceptions, which sets out the argument of counsel, the objections and the court's rulings, quotes the issue of discovered peril as submitted in the charge and is as follows:

"Be it remembered that upon the trial of the above entitled and numbered cause, and while Mr. Gaius Gannon, counsel for the defendants, was arguing the case to the jury, the following argument and proceedings occurred:

"Mr. Gannon: `Now, here is an issue that I want to spend a little time on. It looks like I am about to keep you longer than I thought I would, but I want to discuss this with you. This is a very important issue, a tricky issue. It is one, if you don't look at every word of it, you are liable to get fooled about what you are being asked; and I would hate for you to make a mistake in answering this issue. "Do you find from a preponderance of the evidence that the driver of the truck and trailer discovered and realized Mrs. Daily's position of peril in time, by the exercise of ordinary care in the use of the means at hand, consistent with the safety of his motor vehicle and its occupants, to have avoided the collision, and that after so discovering and realizing such position of peril he failed to exercise ordinary care to avoid the collision." To my way of seeing it, if you will analyze that question, it is mighty near asking you "did he deliberately and consciously cause the accident."'

"Mr. Hightower: `If the Court please, I object to that. He is arguing in the teeth of the Court's charge. His statement is not supported by the Court's charge, and in fact it is contrary to the Court's charge.'

"The Court: `I overrule the objection. Go ahead.'

"Mr. Hightower: `I except.'

"Mr. Gannon: `Well, if it is not absolutely tantamount to deliberate and intentional injury it is the next thing to it.'

"Mr. Hightower: `We want an objection to that argument; and ask that the jury be instructed not to consider it. It is in the teeth of the issue and contrary to the issue the Court has submitted.'

"The Court: `I overrule the objection.'

"Mr. Hightower: `We except.'

"Mr. Gannon: `To my way of thinking, let me repeat, that is approaching deliberate and intentional misconduct. In other words, the court does not ask you did he drive fast and did that cause it; or did he fail to keep a lookout and did that cause it; or did he fail to have his car under control and did that cause it; but, did he, after he discovered that the plaintiff was in a position of peril, and after he had not only discovered it, but realizing that the plaintiff was in a perilous position,—after that time,—do you see? Did he then fail to do something to avoid this collision.'

"Be it further remembered that said remarks and argument were not withdrawn from the jury, but were permitted to be considered by the jury."

Defendant in error states in his brief that, in view of the trial court's action in overruling his objections to counsel's argument, "the question becomes whether or not such argument was a correct statement of the law." He cites and relies upon cases, one of which is J. S. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978, holding that argument is improper and ground for reversal when it is an incorrect statement of the law as set forth in the charge. Stated more particularly, the objection urged to the argument is that...

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19 cases
  • Wright v. Carey, 2332.
    • United States
    • Court of Appeals of Texas
    • March 5, 1943
    ...v. McCoy, Tex.Civ.App., 215 S.W. 870, writ refused; Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663; Sugarland Industries v. Daily, 135 Tex. 532, 536, 143 S.W.2d 931; Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251; Ft. Worth Elevator Co. v. Russell, 123 Tex. 12......
  • R. T. Herrin Petroleum Transport Co. v. Proctor, A-7304
    • United States
    • Supreme Court of Texas
    • July 13, 1960
    ...75; Missouri Pacific Ry. Co. v. Weisen, 65 Tex. 443; Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663; Sugarland Industries v. Daily, 135 Tex. 532, 143 S.W.2d 931; Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112; Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439, wr. ref.; Gul......
  • Gentry v. Southern Pacific Company
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 31, 1969
    ...Grace, 144 Tex. 71, 188 S.W.2d 378 (1945). Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967 (1946); Sugarland Industries v. Daily, 135 Tex. 532, 143 S.W.2d 931 (1940); Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880 (1949). It is our own opinion that a pause of a second or......
  • Wichita Falls & S. R. Co. v. Hesson, 2124.
    • United States
    • Court of Appeals of Texas
    • April 11, 1941
    ...Missouri, K. & T. R. Co., 108 Tex. 331, 193 S.W. 134; Daily v. Sugarland Industries, Tex.Civ.App., 124 S.W.2d 199; Sugarland Industries v. Daily, 135 Tex. 532, 143 S.W.2d 931; Texas Electric Service Co. v. Kinkead, Tex.Civ.App., 84 S.W. 2d 567; Dallas Ry. & T. Co. v. Glenn, Tex. Civ.App., 1......
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