Texas Emp. Ins. Ass'n v. Hadley

• Decision Date: 25 April 1956
• Docket Number: No. 12968,12968
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Alvin Lee HADLEY, Appellee.
• Court: Texas Court of Appeals

Page 809

289 S.W.2d 809

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Alvin Lee HADLEY, Appellee.

No. 12968.

Court of Civil Appeals of Texas, San Antonio.

April 25, 1956.

Lewright, Dyer, Sorrell & Redford, James W. Wary, Jr., Corpus Christi, for appellant.

Hill, Brown, Kronzer & Abraham, W. W. Watkins, W. James Kronzer, Houston, for appellee.

POPE, Justice.

Texas Employers' Insurance Association appealed from a judgment on a jury verdict which awarded Alvin Lee Haldey lump sum compensation for 400 weeks total disability at $25 per week. The appeal is predicated upon four points which complain that the insurer was prejudiced by counsel's argument and one point which states that the verdict of total disability for 400 weeks is supported by no evidence and is against the overwhelming weight of the evidence. We find no merit in the last point, but will discuss those concerning the jury argument.

In the closing argument, counsel for the employee argued that the insurer stopped compensation payments before the employee was able to go back to work, and that the insurer in effect told him, 'Do what you are big enough to do, if anything.' Appellant objected and moved for an instruction to disregard the argument, because it was immaterial, was intended to incite a feeling of wrong or hurt in the jury's mind, and was not true to the evidence. Appellee's counsel answered the objection by stating that the argument was true to the evidence and was made in answer to appellant's argument. The court overruled the objection and gave no instruction. However, after the objection, counsel ceased his argument of that nature and did not again return to it.

The record supports that part of the argument which states the compensation was terminated before employment commenced again. The employee stayed in the hospital at Mathis, Texas, for several weeks and remained in Mathis four weeks after getting out of the hospital. He testified that he then moved his pregnant wife and two children to Palacios to live with his father, in whose five-room house eight other persons already resided. The record shows that the employee testified without objection as follows:

'Q. How long did you continue to live there with your daddy? A. I continued to live there about three months. They cut my compensation off so I had to do something.

'Q. Were you working when they cut your compensation off? A. No.

'Q. You mean they stopped you even though you were not able to do anything at all? A. That's right.'

Insurer showed that the employee obtained work as a truck driver in less than five months after the accident and earned more than he previously earned in the oil fields. The employee rebutted that evidence by proof that he returned to work under necessitous circumstances and before he was physically able to work. In a sense, the insurer argued: 'Hadley was able to work so we cut off his compensation.' The employee responded: 'The insurer made me go to work when I was not physically able to work, and told me to do what I was big enough to do.' The court in overruling the objection to the argument must have given some weight to employee's contention that the argument was invited. Sternenberg v. Marshall, Tex.Civ.App., 257 S.W.2d 312, 319; Cannady v. Dallas Ry. & Terminal Co., Tex.Civ.App., 219 S.W.2d 816, 822. See, Texas Employers' Ins. Ass'n v. Poe, 152 Tex. 18, 253 S.W.2d 645; Panola Motor Co. v. Corbin, Tex.Civ.App., 253 S.W.2d 688.

Insurer's second objection concerned the employee's comments about insurer's employment of local counsel. After the jury was questioned, but before the parties had exercised their strikes, the insurer told the employee that it had employed local counsel who had not theretofore appeared before the jury. The jurors were reconvened so the employee could question the panel touching their relationship with local counsel. In the closing argument, the employee made light of insurer's employment of local counsel. He argued:

'Mr. Watkins: Mr. Miller-you saw how he came into the case. I have just known him these there days and I have come to like him. I think he is a fine man and I am as sincere when I say that as I am when I speak of my client. I don't know Jimmy-I never saw Jimmy before neither. I am representing my client but you saw the circumstances under which John was brought into this case. I am glad he came into the case. He and Jimmy will admit I agreed to it. Jimmy came back and talked to the Court and said he wanted to come in and I said, 'Fine, fine, I will be glad to have him.' I could have went out and got local counsel if I had the money but I didn't. I am down here from Houston but everybody has treated me well. I have no complaints. I am glad to see John get the chance to make his speech. I know you like him; you voted for him; but here is the thing that sticks in my craw about that: How did John get into the case? You all saw this bushy-haired insurance adjustor running around the courtroom--

'Mr. Wray: Counsel is not stating the facts of how John Miller got into the courtroom.

'The Court: I will sustain that objection.

'Mr. Watkins: He didn't get in here until the case had already started. Something went wrong. I don't know what was wrong. Maybe they saw yesterday what serious shape this boy was in. They weren't afraid of me. They said maybe they better call in some reserves after the jury had already been selected. They brought him in. * * *

'Mr. Miller: I did get in the case before the jury was selected.

'Mr. Watkins: I am sorry John. I didn't mean to misstate that. That's right, he was in the case before the jury was selected, but they just thought John's presence might influence one of your jurors just a little bit. Maybe because John came in you feel it is harder on me. I am a big enough boy to know that. I was born up in the Arkansas hills but they thought John might influence the thinking of one of you. No offense to John. I am glad he got in the case. I would be glad to see him make a little fee from it.'

The court sustained the objection insofar as it referred to the 'bushy-haired adjuster,' which, in our opinion, was outside the record and the most serious transgression of counsel. No further reference to that matter was made by counsel. No objection was directed to the remark, 'I could have went out and got local counsel if I had the money but I didn't.' We do not consider that matter within the point, since it is neither alluded to nor briefed. Counsel's objections and motion for an instruction and a mistrial were overruled. Appellant cites Texas & N. O. R. Co. v. Wilkerson, Tex.Civ.App., 260 S.W.2d 912, as an illustration of reversible error for censure and criticism of counsel. The case stands out in vivid contrast to this one. We have in this case some teasing of negligible duration. In the Wilkerson case we have pages of name-calling and argument of matters wholly outside the record and beyond those things which transpired in the presence of the jury. Mr. Justice Garwood, in Wade v. Texas Employers' Ins. Ass'n, 150 Tex. 557, 244 S.W.2d 197, 201, said: 'We judge by the degree of the vice, not merely the subject matter of the argument.' See Karotkin Furniture Company v. Decker, Tex.Com.App., 50 S.W.2d 795.

Appellant's...