Texas Employers' Ins. Ass'n v. Drayton

• Decision Date: 28 June 1943
• Docket Number: No. 5559.,5559.
• Citation: 173 S.W.2d 782
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DRAYTON.
• Court: Texas Court of Appeals

173 S.W.2d 782

TEXAS EMPLOYERS' INS. ASS'N v. DRAYTON.

No. 5559.

Court of Civil Appeals of Texas. Amarillo.

June 28, 1943.

Rehearing Denied September 6, 1943.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Cochran County; Daniel A. Blair, Judge.

Suit under the Workmen's Compensation Act by A. M. Drayton, employee, against the Texas Employers' Insurance Association, insurance carrier, and another, to set aside an award of the Industrial Accident Board. From a judgment for employee the insurance carrier appeals.

Reversed and remanded.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.

Caldwell, Baker & Jordan, of Dallas, Simpson, Dorenfield & Fullingim, of Amarillo, and Loyd R. Kennedy, of Morton, for appellee.

FOLLEY, Justice.

This is a compensation suit in which the appellee, A. M. Drayton, is the claimant, Agey Drilling Company is the employer, and the appellant, Texas Employers' Insurance Association, is the insurance carrier. Appellee sued for total and permanent incapacity resulting from an injury sustained on August 29, 1941, in the course of his employment for such employer on an oil well drilling rig in Cochran County. In a trial before a jury the appellee recovered for total and permanent disability.

The chief complaint of the appellant is based upon alleged improper argument to the jury by counsel for appellee. The argument complained of was preserved in appellant's motion for a new trial and by eleven bills of exceptions, each containing portions of such argument. The arguments were largely of the same character, and appellant insists that they constituted a studied and deliberate attempt on the part of appellee's counsel to prejudice the jury against appellant by criticizing and abusing appellant and its counsel for introducing in evidence, for impeachment purposes, the record of appellee's conviction of a felony in Oklahoma.

In order that this opinion may be intelligible, it becomes necessary, in our judgment, that we quote some of the argument about which the complaint is made. From the eleven bills of exceptions we shall select the argument contained in only five of them, as representative and characteristic of the whole, and which includes statements that appear the most harmful. Before doing so, however, we shall present the factual background for such argument.

In the trial of the case, counsel for appellee, in the absence of the jury, made an oral motion for the trial court to instruct counsel for appellant not to introduce, nor attempt to introduce, any evidence relative to the criminal record of the appellee. In connection with such motion appellee's counsel stated that appellee had been convicted of highway robbery in the State of Oklahoma and sentenced to the penitentiary of that State; that he had also been indicted in Hutchinson County, Texas for the offense of rape, tried, and convicted; that the latter case was reversed by the Court of Criminal Appeals and later the indictment against him was dismissed. Testimony was introduced before the court, in the absence of the jury, showing that on September 13, 1922, appellee was convicted in Osage County, Oklahoma of the offense of conjoint robbery and his punishment assessed at twenty years in the Oklahoma penitentiary. It was further shown that appellee served about nine years of the sentence. He was paroled in 1931 and, under such parole, was required to report to the parole officer every thirty days, until he was pardoned in 1936. There was also introduced before the court a certified copy of the judgment of the District Court of Hutchinson County, dated January 30, 1939, showing that on such date the appellee was convicted of rape and his punishment assessed at confinement in the Texas penitentiary for five years. The latter judgment was admittedly reversed by the Court of Criminal Appeals. Drayton v. State, 138 Tex.Cr.R. 264, 135 S.W.2d 703. The testimony as to the subsequent dismissal of the rape case was obviously hearsay. Appellee testified that the judge of the Hutchinson County District Court had told him the case had been dismissed. Counsel for appellant testified that an investigation of the records of the case had been made by his firm and that, although he had not read the order of dismissal, it was his information that the case had been dismissed. Under the record thus made, the trial court ruled that the evidence of the Oklahoma conviction would be admitted before the jury, but that evidence concerning the Texas conviction would not be admitted. Thereafter, for the purpose of impeachment, appellant introduced in the presence of the jury the evidence relative to the Oklahoma robbery case. In the court's charge the jury was instructed that it might not consider such evidence for any purpose whatsoever except as it might or might not affect the credibility of appellee as a witness.

It should also be stated that the credibility of appellee as a witness became very material in the trial of this case. The evidence was closely contested upon the issues as to whether the appellee's total incapacity if any, continued for any substantial length of time, whether his incapacity entirely terminated or, if it did not, whether any remaining incapacity became only partial. The medical testimony would have supported findings establishing the theory of either party on those issues. Needless to say, the appellee's testimony was exceedingly favorable to his theory of the case.

Following the opening argument of J. B. Dooley, counsel for appellant, Russell Baker, counsel for appellee, made the following argument to the jury: "I think gentlemen, if it had not been for one circumstance in this case, I would not be attempting to make an argument. Of course, lawyers like to talk and I guess I am not an exception, but I think I can leave it to Mr. Kennedy entirely, but, gentlemen, I have been boiling over for two days and I just can't resist the opportunuity to talk a little bit about it. I wonder if you gentlemen have ever stopped to consider what kind of a country this would be to live in, in a country of Christianity and Democracy, if we all went around preaching the text that Mr. Dooley does. Did you ever stop for a minute to think about it. As I stand here and call your attention to that, gentlemen, I have in mind the words of a Savior there on the cross when in his pain and anguish with his head lifted towards his father in Heaven, he looked up and said `Father, forgive them, for they know not what they do.' You know that text. You have heard that text from the time you were a small boy; but (facing Mr. Dooley) maybe your client hasn't. You know it has been said gentlemen that a man can't come back and here is the reason they do. You have heard the reason in this court room right here this week. If you have ever strayed from the straight and narrow, even though you repent and go along and attempt to do what is right, and then some lawyers come along and stamp their foot on you and kick you back in the ditch. That is not the sermon on the Mount, and that is not the doctrine of Democracy in this country, is it? Twenty long years ago this insurance company goes back to dig into your past, Mr. Drayton, here, because it affects your credibility as a witness, or because Mr. Dooley's client is trying to save the money that it owes. I hope, Mr. Drayton, whatever may be the outcome of this trial, that you won't take it as a kick and you will go on just like you have, and have the courage to look these men of the jury in the face wherever you may meet them in the future. I wonder, gentlemen, I wonder if there is a juror, a man on this jury, who conscientiously believes that they offered that testimony here purely for the purpose of affecting his credibility; or, gentlemen, do you believe that it was offered here in an effort to inflame and prejudice your minds?"

An objection to such argument was made by appellant's counsel on the ground that Mr. Baker was attempting to criticize appellant's counsel for introducing admissible and legitimate evidence, evidence which it was the duty of counsel to offer in the proper representation of his client, and the court was requested to instruct the jury not to consider the argument. The court thereupon instructed the jury not to consider for any purpose "that portion of it that deals with the proposition of inflaming your minds * * *."

Thereafter, Mr. Baker further stated to the jury: "Isn't it peculiar, gentlemen, that this insurance company has dug around and traced him back twenty years and shown up these two things? Isn't it peculiar that Mr. Dooley had to come in here with this one thing that he could say that he caught him lying about? Now, what else did he point out to you in his life, in his trial that he lied about? Don't you know if it was as bad or if he is as bad as they picture him here that it would crop out somewhere and not on something that happened a way back yonder? Don't you know, if he was a liar like they say he is, this lawyer over here and that lawyer would have dug more than that out of it, on his weight, and that doesn't mean Drayton is wrong. Maybe the doctor was wrong. All right. Yet, they are willing to go back twenty years, dig up a man's past and bring it in here, throw it in his face and then ask you gentlemen out here * * *."

An objection was made to such argument for the same reasons, subsantially, as stated in the objection to the first argument, and the court was requested to instruct the jury not to consider the same. Thereupon, counsel for appellee stated that he would withdraw the argument and that he was not criticizing counsel nor casting any reflections upon them. The court also instructed the jury not to consider that argument.

Thereafter, Loyd Kennedy, also counsel for appellee, in his argument to the jury, stated: "What does Mr. Dooley tell you? I am too young to criticize him. I am a fledgling at the law. He is old enough for...