Texas Coca Cola Bottling Co. v. Lovejoy

• Decision Date: 10 December 1937
• Docket Number: No. 1728.,1728.
• Parties: TEXAS COCA COLA BOTTLING CO. v. LOVEJOY.
• Court: Texas Court of Appeals

112 S.W.2d 203

TEXAS COCA COLA BOTTLING CO. v. LOVEJOY.

No. 1728.

Court of Civil Appeals of Texas. Eastland.

December 10, 1937.

Rehearing Denied January 14, 1938.

Appeal from District Court, Mitchell County; A. S. Mauzey, Judge.

Suit by R. B. Lovejoy against the Texas Coca Cola Bottling Company to recover damages for an alleged injury to plaintiff's wife resulting from drinking a bottled beverage containing glass. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, and Thos. R. Smith, of Colorado, for appellant.

C. C. Thompson, of Colorado, and Beall, Beall, Yonge & Neblett, of Sweetwater, for appellee.

FUNDERBURK, Justice.

This suit is one brought by R. B. Lovejoy against Texas Coca Cola Bottling Company to recover damages for an alleged injury to his wife resulting from drinking Coca Cola from a bottle with glass in it. Upon a jury trial a special verdict was returned, finding the issues in such way as to warrant and require judgment for plaintiff in the sum of $8,000. From such judgment the defendant has appealed.

In his closing argument to the jury one of the plaintiff's attorneys said: "You gentlemen, in arriving at your verdict, should put yourselves into Mr. Lovejoy's shoes and consider how you would feel in the event it were your wives who had been damaged to the extent that Mrs. Lovejoy has been damaged." No objection, at the time, was made to such remark, nor exception taken thereto; but it was assigned as a ground of error in the motion for new trial. There can be, we think, no room for a reasonable difference of opinion on the proposition that the argument was not proper. It was undoubtedly an appeal to the jury to view one or more of the issues from the standpoint of the plaintiff, which would necessarily be a partisan attitude, inconsistent with the duties of a juror.

An initial question is: Whether, had the defendant made objection at the time, and the court had sustained it and had instructed the jury not to consider it, the remark would have been thereby rendered immaterial, in the sense that under such circumstances it would not be reasonably calculated to influence the jury to render a different verdict. We will presume that, had objection been made, the court would have promptly sustained it and would have admonished the jury not to consider the argument. Unless, therefore, it clearly appears that such action would not have had the effect of rendering the argument immaterial, in the sense stated, then the conclusion must follow, we think, that the court committed no error in refusing to grant a new trial on account of such argument. The error under such circumstances must be deemed to have been waived.

If, however, notwithstanding objection and admonition to disregard it, the argument was of such nature as reasonably calculated to have prejudicial effect, it must be presumed that it did have such effect. In that case only an affirmative showing beyond a reasonable doubt that it had no such effect will suffice to justify the action of the court in overruling the motion for new trial. Upon this proposition see the collation of authorities in Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556.

In our opinion, the argument was of such a nature that, notwithstanding objection and admonition not to consider it, it was, nevertheless, reasonably calculated to prejudice the defendant. In Southern Utilities Co. v. Richardson, 60 S.W.2d 308, 311, this court had for consideration an argument of counsel who, after alluding to an alleged abortion caused by the injury and the "striking down of human life, even in its inception," asked the jury: "How would you feel about it if it was your wife?" Of the last part of this argument, as distinguished from the part immediately preceding it, we said that it "calls upon the jurors to place themselves in the position of the appellees. It is complained that such request called upon them to abandon their unbiased attitude and look at the case from the prejudiced viewpoint of one of the parties. It has been several times held by this and other courts that such argument is improper." That argument, like the one here, was not objected to, and notwithstanding what we said as above stated, we held it not reversible error only because of our interpretation of the opinion in Rio Grande, etc., Ry. Co. v. Dupree, Tex.Com.App., 55 S.W.2d 522, as having impliedly overruled the former decisions mentioned. But the Commission of Appeals, 95 S.W.2d 956, 957, in reversing this court's judgment, sustained the assignment of error and distinguished the Dupree Case by saying: "The argument there involved carried no direct appeal to the jurors to put themselves in the place of the litigant in considering the injury. It was more in the nature of a general appeal to the jurors to apply the golden rule." In other words, the Supreme Court thus, in effect, held that on account of the argument, to which no objection was made at the time, the trial court erred in overruling the motion for new trial, presenting that matter, and that this court erred only in interpreting the Dupree opinion as authority supporting the proposition that it is not error for counsel to make an appeal to jurors to put themselves in the place of a party to the suit. The argument in the instant case more certainly even than the argument in the Richardson Case is subject to such objection. The Supreme Court's opinion in the Richardson Case must, therefore, we think, be regarded as foreclosing the question that the argument is of a nature calculated to prejudice, regardless of objections and admonitions not to consider the same. Southern Ice & Utilities Co. v. Richardson, Tex.Com.App., 95 S.W.2d 956.

On the general proposition that such an argument is improper we may cite the following: Dallas Ry. & Terminal Co. v. Curtis, Tex.Civ.App., 53 S.W.2d 85; Brown Cracker Co. v. Castle, Tex.Civ. App., 26 S.W.2d 435; Dallas Ry. & Terminal Co. v. Smith, Tex.Civ.App., 42 S.W.2d 794; Allen v. Denk, Tex.Civ.App., 87 S. W.2d 303; Ramming v. Halstead, Tex.Civ. App., 77 S.W.2d 920; Gulf, C. & S. F. Ry. Co. v. Carson, Tex.Civ.App., 63 S.W.2d 1096; Southwestern T. & T. Co. v. Andrews, Tex.Civ.App., 169 S.W. 218; Dixie Motor Coach Corporation v. Swanson, Tex.Civ. App., 41 S.W.2d 436. In the first case cited there was no objection at the time the argument was made, but exception was taken after argument closed. The question, therefore, necessarily could only be raised in the motion for new trial. The case of Southwestern Gas & Elec. Co. v. Hutchins, Tex.Civ.App., 68 S.W.2d 1085, is believed to be distinguishable upon the same ground as the Dupree Case.

The next ground of error relied upon involves the action of the court in refusing to set aside the verdict of the jury and grant a new trial because it was shown that the jury in arriving at their verdict on the amount of damages discussed and considered the subject of attorney's fees. Although some question is made regarding the manner in which the essential facts are made to appear, it seems clear enough that upon the hearing of the motion for new trial, after the testimony was introduced, the court permitted counsel to interline this additional ground in the motion for new trial before overruling the motion. The evidence seems to establish conclusively that there was not merely a mention, but a discussion by a number of the jurors, of the subject of attorney's fees in their consideration of the amount of damages. Under the authorities, we think, this must be regarded as material misconduct. Texas & N. O. Ry. Co. v. Parry, Tex.Com.App., 12 S.W.2d 997; Texas & P. Ry. Co. v. Van Zandt,...