Texas Emp. Ins. Ass'n v. Curry

• Decision Date: 28 March 1956
• Docket Number: No. 5142,5142
• Citation: 290 S.W.2d 767
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. J. O. CURRY et al., Appellees.
• Court: Texas Court of Appeals

Page 767

290 S.W.2d 767

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. J. O. CURRY et al., Appellees.

No. 5142.

Court of Civil Appeals of Texas, El Paso.

March 28, 1956.

Rehearing Denied April 25, 1956.

Turpin, Kerr & Smith and Raymond A. Lynch, Midland, for appellant.

Huff & Splawn, Lubbock, for appellees.

HAMILTON, Chief Justice.

This is a workman's compensation case in which appellee, J. O. Curry, as plaintiff below, sued appellant Texas Employers' Insurance Association as defendant to set aside an award of the Industrial Accident Board. Based upon jury findings, judgment was entered against appellant in the trial court for the maximum amount allowed under the Workmen's Compensation Act, for total and permanent disability. Appellee was a roughneck on an oil well drilling team. He testified that about one hour after he started to work one morning that while running pipe in the hole he felt a sharp pain in his back and leg, and that he felt it was a catch, and kept on working. Later he told other members of the crew that he had a catch, or crick, in his back, and went to lie down for a while. There was no evidence of a slip or a fall or any outside force causing the claimed injury, and of course no one saw the appellee receive the claimed injury. The very nature of the alleged accident and the nature of the injury and extent thereof being a back injury, the plaintiff's case rested primarily on the testimony of appellee himself.

The appellant assigns as error the court's action in sustaining appellee's objection to and excluding from evidence certified copy of indictment, judgment and sentence offered by appellant to show that appellee J. O. Curry, who testified as a witness in the case, had been convicted of murder with malice aforethought, and also appellant assigns as error the court's action in sustaining appellee's objection to and excluding from evidence certified copy of indictment, judgment and sentence offered by appellant showing that the appellee, J. O. Curry, had been convicted of the offense of theft of personal property of over the value of fifty dollars.

The law is well settled in Texas and elsewhere that where a witness in a civil case has been legally charged by indictment with an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, such matters are admissible as evidence touching his credibility as a witness. 45 Tex.Jur. 123. In the case of Texas & New Orleans Ry. Co. v. Parry, Tex.Com.App., 12 S.W.2d 997, 1001, Judge Critz, in an opinion approved by the Supreme Court, said:

'The rule is that where the witness has been legally charged by indictment, complaint, or information and complaint, with an offense involving moral turpitude, and has been legally convicted of such offense, in a court of competent jurisdiction, or where the witness has been so legally charged with such offense, and presently admits his guilt, then such matters are admissible in evidence touching his credibility as a witness.'

The record of conviction, that is, the indictment, the judgment of the court and the sentence, are the best evidence and are universally held to be admissible for impeachment of evidence.

Wigmore on Evidence, 3rd Ed. Sec. 980, states that it has been universally acknowledged that proof by record of conviction may be made. The Texas decisions as to impeachment of witnesses in civil cases by proof of record of conviction were reviewed, and the Texas law on the subject was well settled by two decisions of the Commission of Appeals of Texas. Kennedy v. International-Great Northern R. Co., Tex.Com.App., 1 S.W.2d 581; Texas & N. O. Ry. Co. v. Parry, supra.

In the case of Kansas City, M. & O. Ry. Co. of Texas v. Foster, Tex.Civ.App., 38 S.W.2d 391, it was held that an indictment and judgment of conviction constitute the best evidence.

Appellee contends that the records of convictions offered in evidence by appellant in connection with the two criminal cases were not admissible because appellee had admitted the convictions, and further that if the court was in error in excluding them, it did not commit reversible error, because such error was harmless. We cannot agree with appellee on this. As stated at the outset, appellee's case, both as to the issue as to whether the claimed injury was sustained on the job and as to the nature and extent of his injury, rested primarily on the testimony of plaintiff himself, consequently anything bearing on the credibility of the witness was vital to the appellant's defense of the case. The indictment which appellant sought to introduce with reference to the murder case charges that

'J. O. Curry did then and there unlawfully, voluntarily, and with malice aforethought, kill Buddy Bailey by pounding and beating the said Buddy Bailey's head against the pavement of the street.'

Appellee testified that he had been charged with murder without malice, convicted of murder without malice, and sentenced to two years in the penitentiary, and he further testified in explanation of how the killing happened that while in a fight with the deceased, he, appellee, hit Bailey with his fist, and Bailey fell, hitting his head against the bumper of a car. The jury does not to this day know that J. O. Curry, the appellee, killed Buddy Bailey by pounding and beating the said Buddy...