Texas Co. v. Betterton

• Decision Date: 08 January 1936
• Docket Number: No. 1921-6485.,1921-6485.
• Citation: 88 S.W.2d 1039
• Parties: TEXAS CO. v. BETTERTON et al.
• Court: Texas Supreme Court

Page 1039

88 S.W.2d 1039

TEXAS CO. v. BETTERTON et al.

No. 1921-6485.

Commission of Appeals of Texas, Section A.

January 8, 1936.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. Amelia Betterton against the Texas Company, in which Leslie Betterton and others intervened. To review a judgment of the Court of Civil Appeals [56 S.W.(2d) 663], affirming a judgment for plaintiff and the named intervener, the defendant brings error.

Judgments of trial court and Court of Civil Appeals reversed and cause remanded.

Hunt & Hunt, H. G. Butts, and J. Russell Mount, all of Houston, and Lamar Cecil, of Beaumont, for plaintiff in error.

C. A. Lord, of Beaumont, Xavier Christ, of Port Arthur, B. C. Johnson, of Houston, and James E. Gresham and Dallas A. Blankenship, both of Dallas, for defendants in error.

HICKMAN, Commissioner.

A. P. Betterton was killed on a street in Port Arthur in a collision between an automobile which he was driving and a truck belonging to plaintiff in error and being driven at the time by Knockout Brown, one of its employees. In the trial court, Mrs. Amelia Betterton, his surviving wife, and Leslie Betterton, his minor son, were awarded $12,000 damages sustained by them on account of his death, apportioned as follows: $10,000 to Mrs. Betterton, and $2,000 to Leslie Betterton. The judgment of the trial court was affirmed by the Court of Civil Appeals. 56 S.W.(2d) 663, 666.

Writ of error was granted on an assignment presenting the question that the trial court should have granted plaintiff in error's motion to declare a mistrial when there was injected into the case the question of liability insurance. This assignment will be considered first. The question arose in this manner: On cross-examination of the witness Broussard, one of the witnesses of defendants in error, counsel for plaintiff in error handed him a written instrument which the witness had signed and interrogated him with reference to statements therein contained for the purpose of impeachment. Then on redirect examination by counsel for defendants in error the following proceedings were had:

"Q. Is it true? Who wrote that statement? Did you write it? A. I didn't write it.

"Q. Who wrote it? A. The insurance agent, the one that represented the insurance company of the Texas Company.

"By Mr. Butts: `A. Just a minute.'

"A. (Continued) `If I remember right.'

"By Mr. Butts: `Comes now the defendant and moves the court to declare a mistrial in this cause for the reason that counsel has brought out from plaintiff's own witness, and it is unprovoked, uncalled for, unwarranted, and there is no place in this record the question of insurance in this case.'

"The Court: `Motion overruled.'

"Mr. Butts: `To which we except.'"

In holding that this presented no reversible error the Court of Civil Appeals used this language: "Appellant itself injected this instrument into the case. As it had exhibited the instrument to the witness to be offered in evidence, appellees had the right to inquire as to who wrote it." With this reasoning, we are not in accord. Counsel for plaintiff in error did not, by their cross-examination of the witness, inject into the case the question of who wrote the statement signed by him. For the purpose of cross-examination, that was wholly immaterial. They had the right to interrogate the witness with reference to the...