Younger Bros., Inc. v. Myers

• Decision Date: 06 May 1959
• Docket Number: No. A-7090,A-7090
• Citation: 159 Tex. 585,324 S.W.2d 546
• Parties: YOUNGER BROTHERS, INC., et al., Petitioners, v. Mary E. MYERS et al., Respondents.
• Court: Texas Supreme Court

Page 546

324 S.W.2d 546

159 Tex. 585

YOUNGER BROTHERS, INC., et al., Petitioners, v.Mary E. MYERS et al., Respondents.

No. A-7090.

Supreme Court of Texas.

May 6, 1959.

Rehearing Denied June 17, 1959.

Keith, Mehaffy, McNicholas & Weber, Dewey J. Gonsoulin, James W. Mehaffy, Beaumont, for petitioners.

King, Sharfstein & Rienstra, Beaumont, for North American Van Lines, Inc. and others.

Baker & Vaughan, Port Arthur, Marcus, Weller & Evans, Beaumont, for respondents.

NORVELL, Justice.

A take nothing judgment in favor of defendantsYounger Brothers, Inc. and William Jacob Mullis was reversed by the Court of Civil Appeals because of improper argument by defendants' counsel.Myers v. Younger Brothers, Inc., 316 S.W.2d 929, loc. cit. 939-942.Being of the tentative opinion that a reversible error could not be predicated upon such argument in the absence of a timely objection thereto, we granted writ of error.Further consideration of the case has convinced us of the correctness of our tentative opinion.We have also reviewed the points asserted by Mary E. Myers et al. in their brief filed in the Court of Civil Appeals and finding none which would vitiate the judgment of the trial court, the order of the Court of Civil Appeals reversing such judgment is accordingly reversed and the judgment of the trial court is affirmed.

This lawsuit grew out of an automobile-truck collision which occurred on U. S. HighwayNo. 87 between Orange and Port Arthur, Texas on August 16, 1956.Shortly before the collision, the Younger Brothers tank truck was travelling in a southerly direction along a local way known as the Pure-Atlantic Road.Upon approaching the intersection of the Pure-Atlantic Road with HighwayNo. 87 Mullis, the driver of the truck, attempted to negotiate a left-hand turn into HighwayNo. 87 with the intention of travelling thereon in an easterly direction.At this juncture, however, his truck stalled, completely blocking said HighwayNo. 87.A North American Van Lines truck shortly thereafter pulled onto the south shoulder of the highway along the right-side of the cab of the Younger Brothers truck.The North American vehicle was equipped with flashing directional lights which were set in operation and were operating at the time of the collision which took place about five minutes after the truck had stalled.The time was around 7:15 or 7:20 in the evening and there was some dispute as to the degree of the darkness of the night.Mullis put out no flares or warning signals to apprise those in approaching automobiles of the position of his truck, but during the five minute interval mentioned he was occupied in either trying to stop traffic coming from Port Arthur or in unsuccessfully attempting to hook a chain onto the stalled truck so that it could be towed off the highway by the North American truck.Just before the collision occurred Mullis waved his arms and threw his hat in the air in an effort to stop the Myers car.

The automobile driven by H. J. Myers was travelling along the highway in a westerly direction toward Port Arthur at approximately forty miles per hour when it ran into the Younger tank truck.Myers was killed and his wife and children seriously injured.

The jury found that Mullis, the Younger Brothers driver, was not negligent in failing to put out warning signals or flares, nor in deviating from the paved portion of the Pure-Atlantic Road in making his entry into HighwayNo. 87; that he was faced with an emergency caused by the sudden stopping of his truck, and was not negligent in connection therewith.

As to Myers, the jury found that he was guilty of contributory negligence in that he failed to keep a proper lookout.Also in connection with the flashing lights of the North American truck, the jury found that Myers saw these lights and was thereafter contributorily negligent in failing to slacken the speed of his vehicle; in failing to stop the automobile, and in failing to turn his car to his right, that is, to the north side of the Younger truck.

It appears that the State Highway Patrol, the Jefferson County Sheriff's office and the District Attorney either conducted or participated in an investigation of the collision shortly after it occurred.While there was objection and considerable agrument over questions propounded to Mullis, inquiring if the State Highway Patrol and the State of Texas had absolved him of all responsibility in connection with the collision, the following testimony by Mullis was received without objection:

'q.I will ask you this: Did the District Attorney make a fair investigation of this accident and interrogate you and interrogate other witnesses?A.As far as I know, yes, sir.

'Q.And did the State Highway Patrol make an investigation?A.Yes sir.

'Q.Was the Sheriff's Department, was * * * A. Yes, sir.

'Q.Was there a representative of that?A.Yes, sir.

'Q.Did any of these agencies, the District Attorney's office, the Sheriff's office, or the State Highway Patrol, did any of them file any kind of charges whatever against you?A.No, sir.'

Purportedly, based upon this evidentiary record of investigation, counsel for Younger Brothers made the following argument:

'* * * The evidence shows that the Texas Highway Department, State Highway Patrol participated in that investigation.It shows that the Jefferson County Sheriff's Dept. participated in the investigation and it shows that the District Attorney's office participated in that investigation, and what did they do when they got through checking, making a thorough investigation?They were concerned with essentially the same thing that we are concerned with now, that is fault.What did they do?They completely and absolutely exonerated Bill Mullis, and turned him loose, filed no charges whatever, and what (opposing attorney) says will make him so happy is for these twelve men eight months later on the basis of testimony that is no stronger than was there, to say, 'No' that the Highway Department was wrong, the Sheriff's Department was wrong, the DA's office was wrong, we are going to impose and superimpose our judgment, we are going to say to those officers who were sworn to perform their duty that exonerated this man they were wrong, on the basis of that testimony.'

This argument was objectionable primarily because of the unauthorized inferences stated therein.The mere failure to file a criminal complaint is not an exoneration of a charge of civil fault and its consequent liability.'Presumptively, at least, traffic tickets are only given for violation of penal ordinances or statutes and not for the purpose of establishing fault in civil litigation.'Condra Funeral Home v. Rollin, Tex., 314 S.W.2d 277, 282.The question of whether Mullis was guilty of negligence in the particulars charged in the petition was a matter for the decision of the jury impanelled to try this case and not for the State Highway Patrol, the Sheriff's office or other law enforcement agencies.

However, in deciding if the argument constitutes a reversible error, we must deal with a hypothetical situation.As pointed out by the Court of Civil Appeals,-although objection was made to the stating of unauthorized inferences and conclusions during the taking of evidence, no objection was made to the argument above set forth which consisted of references to matters admitted in evidence without objection as well...