Lone Star Gas Co. v. Coates

HODGES, J. Mrs. Mary Coates, joined by her husband, filed this suit against the Lone Star Gas Company to recover damages for [1112] personal injuries. The injuries complained of resulted from a collision between a car in which Mrs. Coates was riding and a truck driven by an agent of the Lone Star Gas Company. The facts show that the collision occurred on a public highway in the village of Saginaw, a short distance north of Fort Worth. Mrs. Coates, together with her children and her father, was traveling north in a Ford car which was being driven by her son, Glenn Coates, a youth about 16 years old. The truck with which they collided was traveling south, and was heavily loaded. It is alleged by the plaintiff below that the truck was running at a rapid and unlawful rate of speed, and was negligently operated. The case was submitted on special issues, and the following is, in substance, the finding of the jury: (1) The truck was being operated at a negligent rate of speed, and this was a proximate cause of the injury. (2) The driver of the truck negligently turned to his left at the time of the injury, and this was a proxim.ate cause of the collision and injury. (3) The collision was not the result of an unavoidable accident. (4y Glenn Coates, who was driving the Ford car, did not when within a short distance of the truck turn'to the left-hand side of the road. (5) Glenn Coates was not guilty of negligence in approaching the truck. (6) The plaintiff, Mrs. Coates, suffered injuries resulting from the collision which the jury valued at $22,525.10. The jury found in Mrs. Coates’ favor on several other special issues submitted at the request of the appellant. A judgment was then entered ip her favor for the damages stated above. The most serious question in this appeal is presented in the first five assignments of error. The facts show that the truck at the time of the collision was driven by one Ed Lackey, an employee of the appellant, who appeared as a witness upon the trial. On cross-examination this witness was interrogated as follows by counsel for the appel-lee: “Q. Didn’t you make out a statement of what your facts, or what you knew about'it, and you signed it? Ans. Yes, sir. “Q. Who was it got that up? Ans. The insurance— “Q. I am not asking you that.” Thereupon counsel for the appellant interposed an objection and desired to state his exception. The court, however, before an exception could he stated, instructed the jury as follows: “Gentlemen - of the jury, the answer of the witness is wholly irresponsive to the question asked. It is not responsive to the question he asked, counsel asked, and it was an improper statement made on the part of the witness, and it would be very prejudicial and improper, highly improper, for the jury to even think about Ms answer that he made, and I ask you to exclude it, and blot it out from your memory, and void it. It was inadvertent on the part of the witness.” v The examination then continued as follows: “Q. There was somebody got a little statement from'you? I am'not asking who they represented. Ans. Yes, sir. “Q. But did you give a written statement to a gentleman that called on you shortly after the accident? Ans. No, sir. “Q. How soon after the accident was it?” After a colloquy not necessary to mention counsel for appellee said: “I want to state to the court and counsel ¡}nd the jury that I did not call for any answer of that kind. I did not want any answer of that kind, and I don’t want the jury to consider it for any purpose.” Thereupon the court again reiterated, in substance, the instructions theretofore given to the jury about disregarding what the witness had said. Counsel for appellant then out of the hearing of the, jury took his bill of exceptions to all that had occurred. After another colloquy between the court and counsel for the appellant, the court said: “Now, gentlemen of the jury, counsel for defendant in taking his bill of exception to the court’s effort to exclude the testimony from you, that he did exclude the testimony from you, 'that he did exclude, has objected to my statement to you that the testimony was improper — of the witness was improper, inadvertent, and prejudicial. Inasmuch as my efforts to withdraw the testimony from you is objected to on account of my using that language, I will say to you that now I will withdraw the statement from you that the testimony was improper, was inadvertent, and was prejudicial, in order that there may be no bill of exception of what I stated to the jury. I withdraw my statement that the testimony was, improper, that it was made inadvertently by the witness, and that it was prejudicial, inasmuch as my efforts to withdraw the testimony from you were objected to on account of my using that language. I think it proper for me just to leave it to the jury and say what effect the testimony would have.” This action bn the part of the court was promptly excepted to by counsel for the appellant. The grounds of the objection here made are that, in the proceedings quoted above, the jury was informed that an insurance company was behind the appellant, and would protect it against loss resulting from an adverse judgment in this case. That the admission of evidence of that character would be cause for a reversal of the judgment is not controverted by counsel for the appel-lees; but they insist that the uncompleted [1113] answer of the witness when he used the words “the insurance” did not have that effect. They also contend that counsel for the appellant is responsible for whatever injury may have resulted from the subsequent proceedings .terminated by the court’s withdrawal of the admonition theretofore given the jury to disregard this answer of the witness. It is doubtful if-any injury would have resulted from the answer of the witness had the proceedings stopped at that point, or had gone no further than the first direction of the court to the. jury to disregard what the witness had stated. But, in view of the entire proceeding which thereafter took place in the presence and hearing of the jury, there was a prejudicial error. What appears to have been rather an animated colloquy between the court and the attorney for the appellant took place, during which the attention of the jury must have- been directed to this particular testimony, which the court had once told the jury was highly improper, but which he later told them they could consider and give it such effect as they thought it should have. Those proceedings were sufficient to impress any jury of average intelligence with a well-founded idea that some insurance company was behind the appellant, and was protecting it against liability in that action.. Counsel for the appellant had a right to take his bill of exception, and should ha-ve been accorded time sufficient to state in some legal form the basis of his objection. The record does not show that he abused that privilege. In view of the fact that this case was submitted on special issues, it is probably correct to say that it is not likely the error discussed affected any issue passed upon by the jury, except that of the amount of damages allowed. The verdict was a large one, considering the injuries that resulted. It is true the wounds inflicted were dangerous, and came near terminating fatally; but they did not, and the after effects are not shown to be so serious as some which often follow less dangerous injuries. While we are not inclined to say that the sum awarded in this instance is too large to be permitted to stand over an objection merely that it is excessive, we feel justified in saying that a much smaller sum would not be regarded as inadequate. The margin of discretion allowed juries in such matters is so wide that it may often conceal a finding based upon improper evidence such as that which the jury were permitted to cpnsider in this instance. Many of the remaining assignments of error relate to remarks made by counsel for the appellees in his closing argument to the jury. Without passing upon the propriety of the langauge used, it is sufficient to say that it may not be repeated upon another trial. There was no error in submitting the issues for the measure of damages in the .form adopted by the court, nor was there any error in refusing to submit the special issues .requested by the appellant. For the reasons discussed, the judgment will be reversed, and cause remanded for another trial.