Transport Insurance Company v. Burditt

• Decision Date: 28 September 1956
• Docket Number: No. 3255,3255
• Citation: 294 S.W.2d 248
• Parties: TRANSPORT INSURANCE COMPANY, Appellant, v. M. C. BURDITT, Appellee.
• Court: Texas Court of Appeals

Page 248

294 S.W.2d 248

TRANSPORT INSURANCE COMPANY, Appellant, v.M. C. BURDITT, Appellee.

No. 3255.

Court of Civil Appeals of Texas, Eastland.

Sept. 28, 1956.

Rawlings, Sayers, Scurlock & Eidson, Fort Worth, for appellant.

Pat Beene, Snyder, Hawkins & Dean, Breckenridge, for appellee.

GRISSOM, Chief Justice.

This is a workmen's compensation case.Burditt sued the insurer of Merchant's Fast Motor Lines, Inc., to recover for total and permanent disability alleged to have been caused by an injury suffered on or about April 6, 1955, while working for Merchant's.Burditt alleged that while lifting a heavy pipe his foot slipped and he sustained serious injury to his back and spine and a hernia on his left side.Burditt further alleged that prior to said injury he was able to do hard manual labor; that, so far as he knew, he did not have any abnormal condition but that if he did it caused no disability.He obtained a judgment for total permanent incapacity and the insurer has appealed.

The jury found that (1) Burditt sustained an accidental injury on or about April 6, 1955, (2) while working as an employee of Merchant's (3) in the course of his employment and that (4) said injury caused a hernia on his left side (6) which did not exist in any degree prior to said injury; that (8) Burditt sustained total incapacity as a natural result of said injury and that (8-A) said injury was a producing cause of his total disability which (9) began on or about April 6, 1955, and (10) will be permanent.The jury also found, among other things, that (18) Burditt's incapacity after April 6, 1955, was not contributed to in any degree by a hernia, 'if any', on his right side which he suffered on October 3, 1953.

Appellant's first eight points asssert that the judgment should be reversed because of the closing argument of Burditt's counsel.Said entire argument is set out in a bill of exception.Said points assert error in making different portions of said argument.

The first point complains of the following argument:

'Now it is pretty easy for you, Mr. Brandenberger, to work a man until he has gotten old, until he has become old.It has been said: 'One day older and deeper in debt, 16 tons.'In this case this man is 16 ton today.It is a comfortable feeling to be employed by some big company who employs some 600 people, which represents some 25 or hundred people, Mr. Burditt, but when you become useless and we can use you no longer because you were careless in handling your work, we will have to fire you and discard you like a pair of old shoes, because you are an old man.You have served your purpose with us.You have been a faithful old horse, but we need you no longer.'

Appellant says this argument was not based on any evidence and was not a reasonable inference to be drawn from the evidence; that it was an appeal to passion and prejudice, was an effort to create the impression that two rich and powerful corporations were seeking to take advantage of a poor, helpless old man and that it compared the size and wealth of plaintiff and defendant and sought a verdict for that reason.This argument was not objected to except in a motion for a new trial.

The argument complained of in the second point is as follows:

'Now, they jump on us about our hernia of 1953.We have done everything in the world to try to explain that to reasonable people, but we are not confronted or opposed by reasonable people, because there is a dollar mark between us, a dollar mark, you understand, to defeat the solemn agreement that was entered into, between the company and an insurance company, for the benefit of a man who had labored and toiled to make them some money.But we don't find that in this company.We find a company and the insurance company one and the same, and we find instead of appreciation for your loyalty, Mr. Burditt, and your hard work and efforts in their behalf a combination that will beat that which they said they would provide for you, and what was that?A guarantee against the day when you couldn't work.But did this company live up to that guarantee.No, they did not.'

This portion of the argument was not objected to at the time it was made but after conclusion of the argument that part of said argument wherein plaintiff's counsel, in the language of appellant's objection, 'stated in effect that under our contract the defendant had guaranteed the plaintiff against the day he would become unable to work' was objected to in the following language:

'I want to except to that part of the closing argument made by Mr. Pat Beene wherein he stated, in effect, that under our contract the defendant had guaranteed the plaintiff against the day he would become unable to work.'

Said objection was then sustained and, without a request therefor, the court instructed the jury not to consider it for any purpose.

The argument complained of in the third point is as follows:

'I wish that had been my client to have had the ability of a two hundred and fifty dollar doctor, a doctor that wants to swear away the disabilities of a man that had worked 7 or 8 years for a company, for an ungrateful company.'

The argument complained of in the fourth point was:

'Now, issue number one, did he receive an injury?I don't believe there is any question but what he did.Did he receive it on or about April 6, 1955, or did he receive it on the 8th?That is all that you are concerned with.It could have been within a month of that time as far as the pleadings are concerned.'

The argument complained of in the fifth point was:

'Now, these first eight issues have got to be answered.No, the first seven have got to be answered, and then No. 8, No. 16, No. 17, andNo. 19.Now, No. 12, let me back up there just a minute.The first eight issues have got to be answered, we contend, and after that issue No. 12, issue No. 16, issue No. 17, issue No. 18, issue No. 19 are the key issues and need to be answered, and those in between you do not have to answer.'

The argument complained of in the sixth point was:

'We are entitled to money for the loss of earning capacity, and that alone.The issue in this case is this man able today to go out in the open market and compete with other laboring men and obtain and retain employment.That is the question.What does the word obtain mean?It means to get and retain means to keep.This is the sole question for you people to answer, and when you have answered that you will give Mr. Burditt a judgment.'

The argument complained of in the seventh point was:

'He did receive an injury.He said he did.Mr. Blakeley said he did.He was there and saw him.They want to jump on him about violating the law.Whose law, Mr. Scurlock?It's the insurance company's law, that's who.It wasn't against the laws of the State of Texas.Mr. Blakeley said: 'I rode with him.'He says: 'Not only did I have permission but the superintendent saw me.That's courtesy extended to all ex-drivers.'Certainly they werent't collecting money to carry passengers for hire.'

The argument complained of in points 1, 3, 4, 5, and 6 were not objected to except in a motion for a new trial.The argument complained of in the seventh point was not objected to at the time it was made.However, at the close of the argument that part of the argument wherein claimant's counsel, in the language of appellant's objection, 'stated to the jury that it was not in violation of any penal statute in this State and he further stated that it was a courtesy extended to all ex-drivers,' was objected to in the following language:

'I further want to except to that part of Mr. Beene's Argument in connection with the conduct on the part of the plaintiff Burditt in transporting the witness Blakeley as a passenger.He stated to the jury that it was not in violation of any penal statute in this State and he further stated that it was a courtesy extended to all ex-drivers.'

The court then sustained said objection and, without a request to do so, instructed the jury not to consider it for any purpose.Only the argument complained of in the second and seventh points was ever objected to prior to filing a motion for a new trial and the only objections made to the argument set out in points 2 and 7 were those heretofore quoted.But appellant contends the portions of the argument set out in said points were so prejudicial and inflammatory that the harmful effect could not have been cured by an instruction.

Appellant's eighth point is that the cumulative effect of all the arguments set out in the first seven points was such that the harmful effect thereof could not have been removed by an instruction.

Texas Employers' Ins. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858, was reversed, among other things, because the argument implied that two important witnesses for the insurer were not to be believed simply because they were Negroes, because the argument constituted an appeal to racial prejudice and the reference to said witnesses as 'yellow nigs' was a reflection on their ancestry, implying they were the product of miscegenation, a crime.However, the general rule applicable here was clearly stated in the opinion by Judge Calvert as follows:

'Generally speaking, to entitle one to a new trial because of improper argument of counsel for the opposing party it must be shown that objection was made and overruled at the very time the argument was made. Texas & N. O. Ry. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264, 266;Wade v. Texas Employers' Ins. Ass'n, 150 Tex. 557, 244 S.W.2d 197, 200.The rule is a sound one.The basis for it is that offending counsel and the trial court should be afforded an opportunity to eliminate, if possible, the prejudice that may result from the argument-counsel by retraction and the court by instruction.As the Court of Civil Appeals correctly observed in this case, ordinarily a litigant will not be permitted to lie in wait, taking a chance on a favorable verdict...