West v. State

• Decision Date: 21 March 1941
• Docket Number: No. 2122.,2122.
• Citation: 150 S.W.2d 363
• Parties: WEST v. STATE et al.
• Court: Texas Court of Appeals

150 S.W.2d 363

WEST v. STATE et al.

No. 2122.

Court of Civil Appeals of Texas. Eastland.

March 21, 1941.

Rehearing Denied April 18, 1941.

Appeal from Scurry County Court; Sterling Williams, Judge.

Proceeding by the State, acting through the Commissioners' Court of Scurry County, to condemn land belonging to Mrs. Ruby West. From an unsatisfactory judgment of the county court on appeal from the commissioners' decision, respondent appeals.

Reversed and remanded.

John E. Sentell and W. F. Newsome, both of Snyder, for appellant.

Stinson, Hair, Brooks & Duke, of Abilene, and Ben F. Thorpe, of Snyder, for appellees.

GRISSOM, Justice.

The State of Texas, acting through the Commissioners' Court of Scurry County, instituted condemnation proceedings against land belonging to Mrs. Ruby West. From the decision of the Commissioners Mrs. West appealed to the County Court of Scurry County. From an unsatisfactory judgment there, Mrs. West has appealed.

By defendant's sixth and seventh bills of exception it is shown that while one of the plaintiff's attorneys was making the opening argument he said to the jury: "You are the taxpayers" and, after further argument, "The taxpayers will have to pay the bill." The bill shows the argument was not then objected to and the court took no steps to suppress it. Bill No. 7 shows that while one of plaintiff's counsel was making the closing argument he stated to the jury, "We meet some unreasonable landowners." Then, after further argument, "You, as citizens and taxpayers, are directly interested in this suit." At another point in his argument he said: "When you go above $25 per acre you will be taking the money out of your own pockets." The bill then recites: "To which statements and arguments, counsel for defendant, Ruby West, duly objected to the court in open court and excepted thereto because each such argument was not supported by the evidence and dehors the record; was an appeal to the self-interest of the jury; was an attempt to align the jury as a party to the suit on the side of the plaintiff; appealed to the prejudice of the jury and was prejudicial to the rights of defendant, and counsel for said defendant moved the court to instruct the jury not to consider such arguments, which objections, exceptions and motion the court overruled and gave no instruction to the jury, to which action of the court, counsel for defendant, Ruby West, then and there excepted." (Italics ours)

The bills were approved without qualification.

In Gulf, C. & S. F. Ry. Co. v. Jones, 73 Tex. 232, 235, 11 S.W. 185, 186, the assignment of error was: "The court erred in permitting counsel for the plaintiff, in his closing argument to the jury, to state to the jury, viz.: `If the plaintiff, Jordan Jones, fails to recover herein, he will be turned loose upon the county as a pauper. He has no means of support outside of his labor. It means that you and I, or the county, will have to support him,' * * *." Relative thereto the Supreme Court, in an opinion by Justice Gaines, said, in part: "The language of counsel in his closing argument was, as appellant insists, a direct appeal to the self-interest of the jury, and was calculated to sway them from a proper consideration of the testimony." The judgment was reversed.

In Humble O. & R. Co. v. Butler, Tex. Civ.App., 46 S.W.2d 1043, 1044, this court, in an opinion by former Chief Justice Hickman, held the following arguments by plaintiff's counsel to be reversible error:

"`But you have got it to do, and your fellow citizens have got that task to perform. Just so long as we have highways in Texas, just so long as trucks and busses and motor vehicles are allowed to run upon the highways of this state, you want your highways safe and I want them safe for the traveling public, for you and your wife and your children to travel upon.' * * *

"`We expect a fair, square shake at this thing. The matter may not be important to you. It is hard to get in the other fellow's shoes and wear them just like he does. You sit over there on the jury; you sit over there as arbitrators in this matter. As I say, it may not seem of great importance to you but it is important to this woman; it is important to Mr. Ooley how you gentlemen go out here and answer these questions. It is a serious, absorbing, important question; it is important to this woman; it is important to Texas; it is important to the public because on the fair square determination of issues of this kind depends the safety and welfare of the people who are buying and paying for these highways. It is your business to approach this question carefully and cautiously; it is important to these that your verdict be arrived at in a careful, painstaking manner in this case.' * * *

"`You are not going to have safety in this state for your wives and your children and yourselves until you hold these fellows to a strict accountability in cases of this kind.'"

Relative to such argument this court said: "That practically all of the above-quoted argument was improper seems to admit of little doubt. The general effect of it all was to summon the jury to the high duty of making the highways safe for their wives and children. This end was to be accomplished by answers to special issues in this case. Had objections been interposed thereto at the time such arguments were made, and such objections been overruled, our duty to reverse the judgment on account thereof would have been plain. Our duty is not so plain in the absence of objections. But there is a well-established rule in our practice, followed by this court in Hewitt v. Buchanan, 4 S.W.(2d) 169, and Nicholson v. Nicholson, 22 S.W.(2d) 514, that improper argument, inflammatory in its nature, injecting into the case matters not properly a part of it, and calculated to prejudice the rights of the losing party before the jury, may, in a proper case, be complained of on appeal, though objection was urged thereto for the first time in a motion for new trial. This is a well-recognized rule. Floyd v. Fidelity Union Casualty Co. (Tex.Com.App.) 24 S.W.(2d) 363; 3 Tex.Jur., § 147, pages 223, 224, and many authorities there cited."

In Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 440, an appeal to the jury to place themselves in the situation of the plaintiffs and do unto them as they would have done to their wives and children was condemned.

In Allen v. Denk, Tex.Civ.App., 87 S.W. 2d 303, 306, plaintiff's statement to the jury, "We hope you will consider these matters seriously and that you will do what you would want a jury to do if you were overtaken by a similar calamity", was held improper and prejudicial.

In Southwestern Telegraph & Telephone Co. v. Andrews, Tex.Civ.App., 169 S.W. 218, 222, the remarks of plaintiff's counsel in argument to the jury, in an action for failure to transmit a telephone call preventing plaintiff from attending the funeral of his half sister, to the effect that the verdict should allow such damages to compensate plaintiff for grief suffered as they (the jurors) would have suffered under the same circumstances, was held improper.

In Brown Cracker & Candy Co. v. Castle, Tex.Civ.App., 26 S.W.2d 435, 440, plaintiff's argument to the jury, "Gentlemen, I submit to you that the best way to pass on any matter where a third party is involved is to put yourself in the other fellow's place. Put yourself in the place of Mr. Castle, how much would you feel that the Brown Cracker & Candy Company should pay you? How many thousand dollars?" was held to be unwarranted and prejudicial.

In St. Louis S. W. Ry. Co. of Texas v. Boyd, 40 Tex.Civ.App. 93, 88 S.W. 509, a damage suit for personal injuries, the argument of plaintiff's counsel was that: "The public is interested in a matter of this kind. If a man is injured under these circumstances * * * and gets only partial damages, then the public suffers, and the law is defeated to the extent that he fails to get full compensation." The court held that the argument that "the public is interested in [the] case", followed by said appeal to the self-interest of the jury and an appeal to them as good citizens to protect the interest of the public by rendering a verdict for a large amount for plaintiff, was reversible error.

In Southland Life Ins. Co. v. Norwood, Tex.Civ.App., 76 S.W.2d 166, 168, plaintiff's counsel said to the jury: "Ah, Gentlemen, if your policy of insurance and your property must be taken from you upon the character of testimony that they offered here on this stand as proof, then I am going to tear mine up and yours is not worth the paper it is written on." This argument was held to be an appeal to the self-interest of the jurors and reversible error.

In Stewart v. Coats, Tex.Civ.App., 91 S. W.2d 421, 422, defendant's counsel, referring to a royalty deed which plaintiffs were seeking to cancel against defendants, said to the jury: "If you find against us in this case, you will set a precedent that won't let a title in this County be safe." With reference to such argument the court said it was "plainly calculated to have the subtle effect of creating prejudice and fear in the minds of the jury that a verdict rendered by them against defendants would result in impairing their own titles and likewise the titles of their neighbors." Though the argument was not objected to and complaint thereof was made for the first time on motion for new trial, because of the appeal to the self-interest of the jury the argument was held to be reversible error.

In Houston Electric Co. v. Potter, Tex. Civ.App., 51 S.W.2d 754, 764, a suit by Potter to recover damages suffered by his wife in an automobile collision, plaintiff's counsel in his closing argument said: "These gentlemen * * * say: `Oh! that doesn't amount to anything to a lady—doesn't amount to anything at all. No, that doesn't amount to anything—take it home to your or my wife." This argument, though not objected to at the time, was held...