Word v. U.S. Coffee & Tea Co.

• Decision Date: 20 April 1959
• Docket Number: No. 6884,6884
• Citation: 324 S.W.2d 258
• Parties: Harold Gene WORD et al., Appellants, v. UNITED STATES COFFEE & TEA COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 258

324 S.W.2d 258

Harold Gene WORD et al., Appellants, v. UNITED STATES COFFEE & TEA COMPANY et al., Appellees.

No. 6884.

Court of Civil Appeals of Texas, Amarillo.

April 20, 1959.

Rehearing Denied May 18, 1959.

Caldwell, Baker, Jordan & Hill, and Harvey L. Davis, Dallas, for appellants.

Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

CHAPMAN, Justice.

This is a personal injury action brought by appellants against appellee, United States Coffee & Tea Company and Louis John Keen, the driver of appellee's truck, as a result of an intersection collision between appellee's truck so driven and the automobile driven by Mary E. Word and in which her daughter, Donna Jean Word and her mother-in-law, Cora Lee Word, both injured, were riding. On the opening day of the trial Louis John Keen was dismissed as a party defendant without prejudice, was designated by appellee as its representative, and with the rule invoked was permitted to remain in the courtroom.

The jury answered in the negative to all six questions that inquired of them if appellee was negligent in those six particulars, and the trial court entered judgment for appellees on the jury's verdict. Appeal is predicated upon five points of error. The first point urges abuse of discretion on the part of the trial judge in refusing to permit appellants, after both sides had rested and defendant had closed, to read to the jury the remaining portions of the deposition of the truck driver, Keen, which had not already been read to the jury. The second and fourth points of error assert abuse of discretion of the trial judge after appellee had closed its case, in refusing to permit appellants to call respectively the truck driver and Police Officer Skinner as witnesses. The third point urges an abuse of discretion on the action of the trial court in refusing appellants their request to make the proffer of the deposition and Keen's testimony in the presence of the jury. The fifth point is based upon alleged error in argument. The first four points involve essentially the same questions of law and will be considered by us together.

The deposition of the truck driver, Keen, was taken on March 7, 1958. The case came on for trial on May 19, 1958. A portion of Keen's deposition was introduced by appellants and read to the jury. Appellants did not offer any other portions of the deposition of Keen nor call him to the witness stand as an adverse witness until they had rested their case and appellee had rested and closed. During the course of the trial appellants had used as their witnesses Mrs. Mary Word, the driver of the car, Mrs. Cora Lee Word, who was riding with her, and James Douglas Thompson and D. A. Gant, truck drivers who witnessed the collision. By these witnesses they developed issues from which the trial court submitted questions of failure of the truck driver to keep a proper lookout; the failure of the driver of the truck to give a signal of his intention to make a left hand turn; whether the driver of the truck proceeded into the intersection at a time when the automobile being driven by Mary E. Word was within the intersection; if the truck driver proceeded into the intersection at a time when the automobile was approaching so closely as to constitute an immediate hazard; the failure to make a left turn after entering the intersection so as to leave the intersection to the right half of the center of Buckner Boulevard; and if the driver of the truck turned left without seeing sufficient space for such movement to be made in safety. Each of these questions were answered, 'no.'

After attorney for appellants had offered some deposition testimony of Cora Lee Word in an effort to clear up some questions appellees' counsel had asked her he announced to the court at about 3:30 P.M., 'Your Honor, that is all from the plaintiffs at this time except the Police Officer Skinner, who was here before noon and said he had an engagement from 2 until 4 and he would call me and try to be here at 4 o'clock.'

After a conference between counsel for appellants and then Mr. Baker, one of appellant's attorneys' statements to the court that he anticipated 'We would probably run through the balance of the afternoon,' the court asked Mr. Patterson, one of appellees' counsel if he had any testimony he wanted to put on, to which he replied, 'I don't believe I will put on anything until they get through, Your Honor.'

The court announced to the attorneys that it was 30 minutes before four and he would like to get along with the case. Mr. Baker, attorney for appellants then said, 'Well, if we may not have permission to use him (obviously referring to Police Officer Skinner) out of turn the only thing we can do at this time is to rest, Your Honor.' The following then transpired:

'Mr. Patterson: The defendants rest, Your Honor.

'The Court: All right. Both sides close?

'Mr. Patterson: We close, Your Honor.

(Conference Between Counsel for Plaintiffs)

'Mr. Baker: Did the court ask me if I close?

'The Court: Yes.

'Mr. Baker: I am sorry, Your Honor; I am sorry, Your Honor. May I stop Mr. Davies just a second?

'The Court: All right.

(Counsel for Plaintiffs Leave The Court Room and Return)

'Mr. Baker: Your Honor, we want to read from the deposition of Louis Keen.

'Mr. Patterson: Now, if it please the court, I didn't put on any testimony. How can they put on any rebuttal testimony? Everything is in this record the same way it was in there when they quit the first time.

'The Court: Will the jury step back in the jury room a minute.'

With the jury retired the record shows 15 pages of controversy between opposing counsel and between counsel and the trial judge concerning the contention of appellants' attorney, Mr. Baker, that appellants were entitled to have the case reopened, after both parties had rested and defendant had closed without offering any testimony, and introduced the remaining part of the deposition of Louis Keen or call him as a witness. In the controversy the trial judge told Mr. Baker, in effect, that if it was a case where he had by inadvertence failed to prove an essential fact such as course of employment, had failed to develop his case because witnesses had promised to be present and had not appeared, or he had not had an opportunity for some good reason to develop his case he would feel inclined to permit him to reopen after defendant had rested, but that counsel through his strategy of presenting his case had failed to offer the remaining parts of Keen's deposition; had failed to call him to the witness stand even though he had been in the courtroom available at all times; had fully developed his case and by resting led appellee to rest its case and commit itself in the presence of the jury without offering any testimony it would not serve the ends of justice to permit the case to be reopened.

Article 2181 Vernon's Ann.Tex.St. provides:

'At any time before the conclusion of the argument the court may permit additional evidence to be offered to supply an omission where it clearly appears to be necessary to the due administration of justice.'

This article has been superseded by Rule 270 Vernon's Ann.Tex.Rules which provides:

'At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Provided in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.'

The very wording of the above statute and the quoted rule that succeeded it indicates a discretionary matter on the part of the trial judge in permitting additional testimony where the parties have rested or closed their cases. Each says the court may permit additional evidence. Had the trial court under the situation presented in this case considered it clearly appeared necessary to the due administration of justice to permit additional testimony by appellants we would not feel inclined to disturb such exercise of discretion. We believe we would be supported in such decision by Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707 (writ refused). However, the trial court obviously felt in the case at bar under the particular situation with which it was confronted that additional testimony was not necessary to the due administration of justice and we do not believe we have the legal authority to say it abused its discretion. (Emphasis added.)

Appellants clearly considered they had developed their grounds of negligence against appellee such as to entitle them to a finding on the negligence questions because they made a motion non obstante veredicto in which they asserted there was no evidence to support the negative findings of the jury to the negligence questions submitted. Additionally, Mr. Baker, in his argument to the court admitted in effect that he had the opportunity of offering the testimony he was urging the court to reopen for him to introduce and he did not offer it because he thought appellee would use Mr. Keen. It is quite obvious from the record before us that he was waiting for appellee to place him on the stand so he could cross examine him upon some statements he had made in the deposition. Further, it is understandable to us why Mr. Baker did not put the truck driver on the stand, because his testimony taken as a whole indicates to us he would have injured appellants' cause as much as he would have helped it. For example, he testified in his deposition that at the time the Word car hit his truck he lacked only about 3 feet being off the highway, that he had driven only about 5 miles an hour into the intersection with the change to a green light and that Mrs. Word was going 50 miles an hour through the intersection.

The question of reopening a case for the purpose of admitting additional testimony is clearly within the sound discretion of the trial judge, and his action refusing to permit a party to reopen for such purpose...