Whitener v. Traders & General Ins. Co.

• Decision Date: 14 March 1956
• Docket Number: No. A-5363,A-5363
• Citation: 289 S.W.2d 233,155 Tex. 461
• Parties: L. O. WHITENER, Petitioner, v. TRADERS AND GENERAL INS. CO., Respondent.
• Court: Texas Supreme Court

Page 233

289 S.W.2d 233

155 Tex. 461

L. O. WHITENER, Petitioner, v. TRADERS AND GENERAL INS. CO., Respondent.

No. A-5363.

Supreme Court of Texas.

March 14, 1956.

Rehearing Denied May 2, 1956.

Earl C. Wellborn, Henderson, Fulmer, Fairchild & Barnett, Nacogdoches, for petitioner.

Kenley, Sharp & Ritter and Herbert Boyland, Jr., Longview, for respondent.

CULVER, Justice.

Petitioner, Whitener, sued to set aside an award of the Industrial Accident Board. Judgment in his favor was reversed and remanded by the Court of Civil Appeals for the reason that improper jury argument by petitioner's counsel was calculated to and probably did cause the rendition of an erroneous judgment. Tex.Civ.App., 279 S.W.2d 152.

We are of the opinion, however, that although some, if not all, of the argument was improper, yet taken separately or as a whole the argument cannot be said to have probably influenced the jury to the prejudice of the respondent under circumstances of this case.

That portion of the argument which the Court of Civil Appeals considered the most harmful arose from counsel's efforts to belittle medical testimony offered by respondent in connection with a prior back ailment of petitioner. The statement is as follows:

"One of the doctors got on the stand and said it was evolutional melancolia. 'What is that, doctor?' 'Oh, that is the middle age, that is the change of life. Like a woman, the middle age change of life'. Another doctor, 'What is his trouble, Dr. Wilcox?' 'Old age, it is old age.' I was expecting that maybe Dr. Wolfe would come in here and say in this case of Mr. Whitener's maybe he ought to have his unnecessary female organs removed, and let us hear it. Talk about inconsistencies."

Respondent contends that the effect of this argument was to comment upon the fact that Dr. Wolfe was not called as a witness and would have testified differently from other witnesses for respondent. Dr. Wolfe was so interpret the argument. Dr. Wolfe was a physician of petitioner's own choice. It seems that if any inference was to be drawn it was rather that petitioner's own doctor would have agreed that petitioner's cndition was due solely to old age rather than to an injury. At worse the remarks were inappropriate and a misplaced attempt at humor.

Respondent complains of counsel's comment on the failure of respondent to call petitioner's employers who lived in Houston on the question as to whether petitioner had given notice of his injury within the thirty-day period. Petitioner had testified that he had given notice to the employers of the injury, and this issue was controverted by respondent. There is a contractual relationship between employer and compensation carrier requiring the employer to cooperate. This would render the insured employer more available to the carrier than to the plaintiff employee. At any rate the Court on the objection of the respondent instructed the jury not to consider that portion of the argument concerning the failure on the part of the respondent to produce the employers at the trial of the case. We think the comment was legitimate.

In his opening remarks petitioner's counsel referring to the Court's charge said:

"Now let's see what the Court tells you total disability is. He emphasizes right there, he puts it in caps 'Total incapacity' that is the third page"

"Our objection, your honor, to the statement of counsel to the jury that the court is emphasizing total incapacity for the reason it is not true, the court is not emphasizing any portion of the charge, therefore it is a comment on the action of the court and asks the jury to consider what the court thinks about this case.

"The Court: Sustain that objection."

"What I should have said, gentlemen, it is in caps, the term 'total incapacity' is in caps and in quotes." (Tr. 59-60)

No further objection was made. All of the terms defined in the Court's charge were expressed in capital letters and in quotation marks thus: 'Preponderance of the Evidence'. We fail to see how this statement of counsel could be harmful and especially so in view of the action of the Court in sustaining the objection, and what counsel said following was merely a statement of fact that was apparent on the face of the charge to the members of the jury.

Respondent again complains of a statement by counsel allegedly misquoting the testimony of a witness, Cato, who was employer's foreman. The statement of counsel is:

'* * * You will recall that I ask Mr. Cato the point blank question, 'Mr. Cato, are you willing under your oath to testify to this jury that Mrs. Whitener did not tell you that her husband had sustained an injury while cranking that motor on July 3, 1953.' And what was his answer 'No sir.' 'No sir'. Isn't that the clinching evidence that he actually knew about it?' (Tr. 66)

Cato's testimony was that the first he knew of any claim was when he got the notice from the lawyer and on cross-examination said that he did not recollect that Mrs. Whitener had told him anything about the injury. The following questions and answers then appear:

'Q. Is it possible, Mr. Cato, she might have told you that and you have forgotten about it? A. Well, I don't recollect her saying that.

'Q. All right, then you went-would you say Mr. Cato, that she did not say that? A. I did not say she did not, I said I didn't recollect her saying that.'

We think the wariance is not substantial. Counsel was not...