Texas Emp. Ins. Ass'n v. Garza, 1196

Citation557 S.W.2d 843
Decision Date27 October 1977
Docket NumberNo. 1196,1196
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

YOUNG, Justice.

In this workmen's compensation case Toribio Garza sued Texas Employers' Insurance Association seeking compensation for total and permanent disability caused by back injuries received on July 2, 1974, while employed by Billy Moore Trucking Company. Trial before a jury on special issues resulted in a judgment for plaintiff for partial and permanent disability benefits. Defendant insurance company appeals. We affirm.

The insurance agency's points of error 1 through 9 complain of remarks made by the trial judge to Mr. Segrato, counsel for the company, and to the jury. As basis for reversal of the judgment, the insurance company would show that these remarks belittled its counsel and constituted comments on the weight of the evidence which were calculated to and probably did result in the rendition of an improper verdict. The incident complained of in points 1 through 4 and 7 occurred when defense counsel was cross-examining Dr. Warren Ross about a statement he had supposedly made and about his possible biases. In that regard, the following colloquy occurred between the trial judge and Mr. Segrato. The remarks specifically complained of are underlined:

"THE COURT: Well, I don't think it's material, just harassment.

MR. SEGARATO: Your Honor, I intend to harass him as much as I can in cross examination.

THE COURT: Well, you are not going to do it in this court or you will end up in that jail.

Q: Doctor, how may patients have you seen for Hector Gonzales?

THE COURT: What is the relevancy of that in this case?

MR. GONZALEZ: I don't think that is relevant.

THE COURT: Mr. Gonzales is a member of this bar in good standing, if he sends a patient to see doctor so and so here or this man

MR. SEGRATO: The relevancy, Your Honor, is that it touches on his bias and prejudice in this case, and on his credibility as a witness before the jury, that's why I am attempting to offer this.

MR. GONZALEZ: I object to it.

MR. SEGRATO: Your Honor, I would like to make a bill on this, please, sir.

THE COURT: Well, let's do this in a decent lawyerlike way.

MR. SEGRATO: Pardon me sir?

THE COURT: Let's conduct this trial in a decent lawyerlike way.

MR. SEGRATO: I will, Your Honor.

THE COURT: You have stated that you are going to harass this witness every way you can.

MR. SEGRATO: By cross examination.

THE COURT: Well, I don't know whether I should can this lawyer take over the case or Mr. Schneider?

MR. SEGRATO: Beg your pardon?

THE COURT: Can Mr. Schneider take over the case?

MR. SEGRATO: He doesn't know anything about the facts of the case, Your Honor.

THE COURT: Well, conduct yourself as a lawyer and a gentlemen.

MR. SEGRATO: I will, Your Honor.

THE COURT: Don't try to inject prejudice, let's try this case on the facts."

A presiding judge has broad discretion with respect to the manner in which control of a trial is maintained and to the extent of cross examination allowed and a judgment will not be reversed for error in either of these areas unless probable prejudice is shown. Best Investment Company v. Hernandez,479 S.W.2d 759 (Tex.Civ.App. Dallas 1972, writ ref'd n.r.e.); Sands v. Cooke, 368 S.W.2d 111 (Tex.Civ.App. San Antonio 1963, no writ); Texas Mexican R. Co. v. Bunn, 264 S.W.2d 518 (Tex.Civ.App. San Antonio 1953, writ ref'd n.r.e.). As a general rule, however, a trial judge may not comment on the weight of the evidence. 56 Tex.Jur.2d Trial § 80 (1964).

It seems plain to us that the remarks presented contained no intimation in favor of or against the credibility of the evidence, nor any direct comment on the weight of the evidence, but only a rebuke of counsel for threatening to harass the witness. It is quite clear that it is improper for counsel to threaten or browbeat a witness and that the extent of cross-examination is left largely to the discretion of the trial judge. 62 Tex.Jur. 2d Witnesses § 180 (1965). Here the trial judge told defense counsel that certain questioning was harassment. In reply the attorney stated that he intended to harass the witness as much as possible. This remark was contemptuous of both the judge and the witness. Thus the trial judge was correct in admonishing defense counsel. French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ); Fox v. Gulf C. & S. Ry. Co., 80 S.W.2d 1072 (Tex.Civ.App. Galveston 1935, error dism'd).

Further, it is our opinion that the remarks complained of are of the type which could have been rendered harmless by proper instructions from the trial judge after objection. Counsel for the insurance company did not object to any of the remarks of which he now complains. So his failure to object to the claimed prejudicial remarks of the trial judge waives such error on appeal. State v. Wilemon, 393 S.W.2d 816 (Tex.Sup.1965); Gillum v. Temple, 546 S.W.2d 361 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n.r.e.). Appellant's points 1 through 4 and 7 are overruled.

In its points 5 and 6 the insurance company complains of the following remarks by the trial judge:

"I think you ought to ask the doctor questions and not make statements of fact, Mr. Segrato, if you want to testify we will let you take the stand.

You have asked him these things over and over and over, you are harassing the Court now."

After our review of the testimony leading up to these remarks by the court we cannot find that the trial judge abused his discretion in controlling the trial in this manner. Hill v. Budget Finance & Thrift Company, 383 S.W.2d 79 (Tex.Civ.App. Dallas 1964, no writ); Cogbill v. Martin, 308 S.W.2d 269 (Tex.Civ.App. Waco 1957, no writ). Again appellant has failed to object to the trial judge's remarks. Therefore if there was error it has been waived. State v. Wilemon, supra; Gillum v. Temple, supra. Appellant's points 5 and 6 are overruled.

The insurance company, in its points 8 and 9, urges error in the following underlined remarks of the trial judge:

"THE COURT: Yes, the question in this case is whether this man, this plaintiff over here is capable of performing the ordinary tasks of a workman, to the extent of being able to or not being able to obtain and keep employment. I am confused about a lot of this symmetics, (sic.) can't we get down to the basic questions or question of the ability of this man to, whether he can get a job and do work and keep a job?

MR. SEGRATO: Well, Your Honor, I think what I am trying to question the doctor on is whether or not his diagnosis and treatment that he gave this man was necessary, and surgery, was necessary.

THE COURT: How many of you jurors were confused? Hold up your hands. Well, go ahead."

Even if these statements constituted comments on the evidence as presented, they were not so prejudicial, in view of the entire record, that they caused reversible error. Once more defense counsel failed to object to the trial judge's remarks. Thereby he waived any error that could have been asserted. State v. Wilemon, supra; Gillum v. Temple, supra. Appellant's points 8 and 9 are overruled.

Points 10 through 16 are complaints by the insurance company of the trial court's refusal to allow cross-examination of Dr. Ross about his qualifications and about his possible bias and prejudice. In Russell v. Young,452 S.W.2d 434 (Tex.Sup.1970), our Supreme Court held that cross-examination of a medical witness to show bias and prejudice may be based on the number of times the witness has testified in other lawsuits, payments for such testimony and related questions. See Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App. Houston (1st Dist.) 1967, no writ). It is also well established law that on cross-examination of an expert witness, counsel may inquire into the witness' qualifications. French v. Brodsky, supra; Grocers Supply Co. v. Stuckey, 152 S.W.2d 911 (Tex.Civ.App. Galveston 1941, writ ref'd w.o.m.).

In that regard, when...

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