Texas General Indemnity Company v. Ellis, 309

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation421 S.W.2d 467
Decision Date16 November 1967
Docket NumberNo. 309,309
PartiesTEXAS GENERAL INDEMNITY COMPANY, Appellant, v. J. C. ELLIS, Jr., Appellee. . Tyler

Page 467

421 S.W.2d 467
J. C. ELLIS, Jr., Appellee.
No. 309.
Court of Civil Appeals of Texas.
Nov. 16, 1967.

Saunders & Caldwell, Gene W. Caldwell, Tyler, for appellant.

Richard W. Fairchild, Nacogdoches, for appellee.

DUNAGAN, Chief Justice.

This is a workmen's compensation suit. The case was tried before a jury. Upon the findings of the jury, the trial court entered a judgment for total and permanent disability for the appellee in the sum of $13,703.39. Appellant duly perfected its appeal from such judgment to this court.

Appellant first contends that: 'The trial court erred in failing to grant Appellant's Motion for a Mistrial, made after improper argument of counsel for the Appellee.' We overrule this contention.

The argument of which appellant complains, and on which it filed its motion for new trial, was as follows: 'And then his wife out there had been sick for two years from childbirth--a young woman and 7 little tots, that he loves, just like you love yours, and he has got the same God given right to love them--and not have paid Doctors and paid lawyers to come in here and--'.

At this point, counsel for appellee was interrupted and the sentence was not completed. Counsel for appellant objected on the ground that due to certain stipulations, such argument was improper and requested the court to instruct the jury to disregard it. The court sustained the objection and instructed the jury to 'disregard the last argument of Counsel about the financial circumstances of the Plaintiff and his family.' Counsel for appellee then pointed out that he had said nothing about the financial circumstances of plaintiff (appellee) and his family, but had said that he had the right to love his family just as the jury loved theirs; and further stated that if he had said anything about finances, he apologized and withdrew it, though he felt he had a right to discuss that under the circumstances of this case, 'because that's why he is working.'

Counsel for appellant then moved for mistrial for the reason that the argument was so prejudicial that an instruction would not remove it from the jury's mind.

Immediately before the argument objected to and quoted above, counsel for appellee had argued that the defense was that Ellis had been working and therefore was able to work, that he had no income, that the appellant knew it owed him, and if it had paid him, he wouldn't have had to work.

We do not consider the argument complained of to be a reference to the financial circumstances of appellee and his family. Evidence was admitted without objection that Ellis was 28 years old and had a wife who had been sick from childbirth for about two years and that he and his wife had seven children. Under the record in this case, we do not view the argument as being improper.

However, if it should be considered that the argument was a reference to the financial circumstances of appellee and his family, it still was not improper. As counsel for appellee pointed out at the time, the defense was that because Ellis had done some work since his injury, he was therefore able to work. Ellis had testified without objection that while he did some work after his injury, he was not able to work without suffering, that working or trying to work aggravated his pain. In supporting his wife and children, he had to work. Since appellee had the right to show that he had worked since the injury under the whip of financial necessity, to avoid the inference that he would not have worked if he had not been physically able to do so (Muro v. Houston Fire And Casualty Insurance Co., 310 S.W.2d 420, Tex.Civ.App., San Antonio, 1958, writ ref., n.r.e. and Bituminous Fire & Marine Insurance Co. v . Jones, 398 S.W.2d 577, 580, Tex.Civ.App., Tyler, 1966, writ ref., n.r.e.), his counsel had the right to argue, on the basis of the evidence admitted

Page 470

without objection, that appellee had worked since his injury, not because he was able to do so, but because he had to work to support his wife and seven children, whom he loved.

In any event, in the light of the evidence before the jury without objection, the action of the trial court in promptly instructing the jury not to consider the argument objected to, and counsel for appellee withdrawing any reference to the financial circumstances of appellee, if any were contained therein, the argument was not of such nature as was reasonably calculated to cause, nor did it probably cause, the rendition of an improper verdict and judgment. Consolidated Underwriters v. Whittaker, 413 S.W.2d 709, 717, 718 (Tex.Civ.App., Tyler, 1967, writ ref., n.r.e.); Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, 550 (1959); and Royal v . Cameron, 382 S.W.2d 335, 343 (Tex.Civ.App., Tyler, 1964, writ ref., n.r.e.).

Next, appellant contends that the court erred in permitting appellee's counsel to question its witness, Dr. Colquitt, about future medical treatment of the appellee and in failing to grant appellant's motion for mistrial pursuant to the court refusing to allow it to go into the beneficial effects of surgery before the jury.

On re-direct examination, testimony of Dr. Colquitt was elicited, without objection, to the effect that in the future appellee would need medical attention, medicines, and treatment. No inquiry was made as to what treatment would be required.

Later in the trial, after the court had refused to allow appellant to offer before the jury evidence as to the possible beneficial effects of surgery, appellant moved the court to instruct the jury to disregard the testimony as to the necessity for future medical attention as it was beyond the scope of the pleadings and not proper to be considered by the jury in arriving at its verdict. Counsel for appellee agreed that such instruction should be given. Appellant then moved for mistrial on the ground that such instruction could not remove the prejudice. The trial court denied the motion for mistrial but instructed the jury to disregard the testimony as to the necessity for future medical expenses.

No issue as to future medical was submitted to the jury, nor was recovery for future medical sought in the pleadings. But, since Dr. Colquitt had testified that appellee's physical condition resulting from the injury had required medical attention to the time of the trial, that it had disabled him to work, that it was permanent, and that it would continue to disable him to work in the future, the testimony as to the continuing need for medical attention in the future was admissible, not as a basis of recovery for expenditures therefor, but as a circumstance tending to show that appellee's physical condition, as it had existed to the time of trial, would remain unchanged in the future.

In any event,...

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8 cases
  • American General Fire and Cas. Co. v. McInnis Book Store, Inc., 13-92-062-CV
    • United States
    • Court of Appeals of Texas
    • June 10, 1993
    ...not jury misconduct. It argues that appellees accepted the duty to sanitize the exhibit, citing Texas General Indemnity Co. v. Ellis, 421 S.W.2d 467, 472-73 (Tex.Civ.App.--Tyler 1967, no writ). Appellees contend that both parties shared the duty to inspect the exhibits, citing City of Houst......
  • Powell v. Powell, 1035
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 11, 1977
    ...the duty of the court nor the party objecting to separate the admissible from the inadmissible. Texas General Indemnity Company v. Ellis, 421 S.W.2d 467, 473 (Tex.Civ.App. Tyler 1967, n. w. (3) Even if the statement had been offered for a limited purpose, the court was correct in excluding ......
  • Hooper v. Torres, 08-89-00306-CV
    • United States
    • Court of Appeals of Texas
    • May 9, 1990
    ...Association v. Creswell, 511 S.W.2d 68 (Tex.Civ.App.--Eastland 1974, writ ref'd n.r.e.); Texas General Indemnity Company v. Ellis, 421 S.W.2d 467 (Tex.Civ.App.--Tyler 1967, no writ). Point of Error No. Four is overruled. Point of Error No. Five is overruled since Appellant was not entitled ......
  • Texas Emp. Ins. Ass'n v. Garza, 1196
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 27, 1977
    ...be admissible. Otherwise there is no error in the trial court's exclusion of the evidence. Texas General Indemnity Company v. Ellis, 421 S.W.2d 467 (Tex.Civ.App. Tyler 1967, no writ). The offer of the excluded testimony by the insurance company here was not a limited offer but a general All......
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