Warren v. Premier Oil Refining Co. of Texas, 2383.

• Decision Date: 25 June 1943
• Docket Number: No. 2383.,2383.
• Citation: Warren v. Premier Oil Refining Co. of Texas, 173 S.W.2d 287 (Tex. App. 1943)
• Parties: WARREN v. PREMIER OIL REFINING CO. OF TEXAS.
• Court: Texas Court of Appeals

173 S.W.2d 287

WARREN v. PREMIER OIL REFINING CO. OF TEXAS.

No. 2383.

Court of Civil Appeals of Texas. Eastland.

June 25, 1943.

Rehearing Denied July 16, 1943.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by Ernest Warren against Premier Oil Refining Company of Texas for damages to cattle and leased grass as result of defendant's negligence. Judgment for defendant, and plaintiff appeals.

Affirmed.

Grisham & Grisham, of Eastland, for appellant.

Turner & Seaberry, of Eastland, for appellee.

LESLIE, Chief Justice.

Plaintiff, Ernest Warren, instituted this suit against the Premier Oil Refining Company, a pipe line company, for damages to his cattle and leased grass by reason of two leaks which occurred in the defendant's lines in January, 1942. Plaintiff alleged that the oil leaked out and killed his grass and injured some and killed others of his cattle that drank the oil. Plaintiff grounded his cause of action on the alleged negligence of the defendant. Specific acts of negligence were alleged. Only two grounds of such negligence were submitted to the jury.

In substance the two grounds of negligence submitted were: (1) Did the defendant fail to inspect its lines, and (2) was defendant using excessive pressure at the time of the leaks. The jury answered both questions in the negative.

Under the instructions from the Court, if said questions were answered "No", it was unnecessary for the jury to answer if such failure or use was negligence or if such negligence was the proximate cause of plaintiff's alleged damages. No objections were made by plaintiff to the form of these instructions or to any other part of the charge or issues.

In answer to another issue, the jury also answered that some of plaintiff's cattle were injured from drinking salt water from other sources wholly disconnected from the leak in defendant's line. The plaintiff made no objection to the submission of this issue and did not request the submission of an issue inquiring what proportion of the damages, if any, was proximately caused from such disconnected sources.

Upon the jury's answers to various special issues, the Court decreed that plaintiff recover nothing, and he appeals. His points will be considered in their order.

By Point 1, the appellant complains that the Court erred in requiring him to testify "whether or not he had failed and refused to render his property [that involved] for taxes in Eastland County." (Bill of Exception.)

When the plaintiff was on the witness stand, and after he had testified to the number and ownership of the stock lost and value thereof, he was asked on cross examination whether or not he had failed and refused to render his taxes in Eastland County. The question and answer was objected to on the ground that the same was irrelevant, immaterial and prejudicial. The objection was overruled and the witness testified that he did not render his property for taxes in Eastland County for 1942, and on being questioned further replied that he did not render same for any previous years in Eastland County, and that the assessor in Stephens County (adjoining) had not procured his rendition, and that he had not paid taxes on his property at any time within the past four years.

Such is the substance of the testimony elicited, and the bill of exception approved by the Court and by which plaintiff perpetuates said alleged error is qualified by the court as follows: "By this suit the plaintiff was seeking to recover of the defendant the value of certain cattle which he alleged had been killed and injured by the negligence of the defendant, and the number of cattle owned by the plaintiff and their value in January, 1942, or prior thereto, became a material issue to be determined by the jury. A great deal of testimony was heard as to the number of cattle owned by plaintiff in the early part of 1942 and their value; the plaintiff himself testifying in detail as to the different cattle owned by him; the plaintiff undertaking to give the value on the dates in 1942 before and after the alleged injury to his cattle. It was in connection with the cross examination of the plaintiff by the defendant's counsel that the testimony complained of was given. Among other questions the plaintiff was asked as to whether or not he had had conversation with one Mr. Gregory, Deputy Tax Collector of Eastland County, in March, 1942, to which witness answered that he could not remember, or some similar statement."

All phases of plaintiff's suit were being closely contested by the defendant, which was denying that the plaintiff owned the number of cattle alleged by him as well as the value placed by him upon his cattle. Under these circumstances and in the light of the court's qualification, we are of the opinion that the trial court did not err in permitting the counsel for defendant to ask the defendant on cross examination whether he had rendered his stock for taxes in Eastland County. Such testimony was material on the issue of the number of cattle, plaintiff's ownership, and their value, as well as a proper predicate for plaintiff's impeachment by the witness Gregory, who endeavored to obtain from him about the time involved a rendition of his stock.

Plaintiff's testimony is to the effect that he had not rendered his stock for taxes during the previous five years, and in response to questions propounded by the Eastland County Assessor, plaintiff had stated "I render my taxes in Breckenridge (Stephens County)." In that same connection he admitted that he lived in Eastland County. The defendant was exploring the possible true or correct valuation of the stock alleged to have been killed and was endeavoring to present plaintiff's renditions, or show the amount of taxes he had paid on the same, though no rendition had been made at the usual time.

In substance and effect, Point 2 raises a like question. It is there complained that the Court erred in admitting, over the plaintiff's objection, the testimony of one Gregory, Deputy Tax Collector for Eastland County, that he asked for plaintiff's rendition for taxes for 1942, and that plaintiff did not render them to said deputy, but told him he rendered his property in Stephens County. This is complained of as being immaterial, irrelevant and prejudicial.

In approving the bill of exception pertaining to this alleged error, the trial court qualified the same as follows: "The testimony of the witness, Gregory, complained of by the plaintiff was admitted by the court after the plaintiff as a witness had testified on cross examination as to the number, kind, and value of the cattle owned by him on January 1, 1942, in Eastland County, Texas, and it was after the introduction of this testimony that the plaintiff was asked on cross examination if he had not in March, 1942, refused to render his property for taxes in Eastland County to Deputy Tax Assessor, Gregory, to which question the witness answered, `I do not remember.' The testimony was admitted on the theory that the number of cattle and their kind and value owned by the plaintiff in January, 1942, was a material issue and that any statement made by the plaintiff to the witness, Gregory, or any other person concerning the kind of cattle and their value, was admissible testimony."

We are of the opinion that the bill as explained reflects fully and clearly the materiality of the testimony. The cross examination was pertinent, and no error is disclosed by points 1 and 2.

As to Point 1, it will also be observed that whereas the appellant asserts the court required him to testify that he had not paid his taxes; the bill of exception shows that he was merely asked if he had rendered his taxes.

By Point 3, the appellant insists the judgment herein should be reversed because of improper argument of defendant's counsel, which the appellant in the body of his tendered bill states was as follows: "I hold in my hand here a list of Plaintiff's property; he has not paid one thin dime of taxes in Eastland County for the five years that he has been out there; I mean to see that the attention of the tax authorities of Eastland County is called to this matter. This is a very important suit. While the plaintiff has not paid a thin dime of taxes in Eastland County he asks a jury of Eastland County to give him a judgment for more than four thousand dollars. I ask you to answer issues one (1) and eleven (11), four (4) and fourteen (14) `No', and I assure you that the Defendant and every other patriotic tax paying citizen of Eastland County will approve your verdict, and which error is further reflected by Bill of Exceptions with reference thereto, said argument being addressed to no proper issue in the case and obviously inflammatory and an effective appeal to prejudice."

The plaintiff's objection to the argument was not presented at the time the same was made, but at the time the bill of exceptions was tendered. He admits that he made no request at the time of the argument for instructions by the court that the jury disregard the same.

The true import of the bill is not reflected by the above excerpt, but by the trial court's qualification taken in connection therewith. That qualification is as follows: "In this bill of exception, complaint is made by the plaintiff of the certain purported argument made by V. T. Seaberry, Attorney for the Defendant, while arguing before the jury. Since no complaint was made to the court of the argument now complained of, I cannot be clear as to just what occurred, but as I now recall, Mr. Seaberry, in opening the argument for the defendant, discussed in a general way the attitude of the plaintiff throughout the trial and his failure to render and pay taxes over a period of several years; and that it was in this connection that he referred to the failure of the plaintiff to pay taxes either in Stephens or Eastland County over a period of several years; and that later in the same...