Nichols v. Adler

GRAVES, Justice. This agreed statement of the nature and result of the suit, as being correct, is taken from appellant’s brief: “This is a suit for damages for personal injuries sustained by plaintiff, George M. Nichols, in an automobile collision, which occurred in the city limits of the City of Galveston, * * * ” on June 17, 1951, at about 12:30 a. m. The collision occurred at the intersection of 45th Street and Avenue Q, and involved a Lincoln automobile driven by the plaintiff in a westerly direction on Avenue Q, and a Packard automobile driven by the defendant, A. Adler, in a northerly direction along 45th Street. The collision was a violent one, and resulted in numerous and multiple injuries to the plaintiff, including a broken neck. “On the trial of the case to a jury on special issues, findings were rendered that both the plaintiff and defendant were guilty of certain acts of negligence proximately causing the collision. Plaintiff’s damages were assessed at a total of $19,276.71. * * *. Judgment denying either the plaintiff or the defendant, or the intervenor, a recovery, was entered on the jury verdict, from which plaintiff alone has duly perfected this appeal.” Appellant predicates his appeal upon six póints of alleged error, which he discusses in two groups, the first three, labelled Group No. 1, and the second three, under Group No. 2. Under the first three points appellant complains that the trial court denied him the “fundamental right to show the interest, bias and prejudice of one of the Appellee’s witnesses” on the trial, I. A. Lerner, as well as the further right “to impeach the same witness by the contradicting testimony of one of Appellant’s attorneys.” Under his fourth, fifth and sixth points he complains that the court erred in denying the appellant’s motions — filed below — seeking relief against what he alleged to be material misconduct upon the part of the jury, which tried the cause. None of these presentments, it is determined, should be sustained; because it is held that the appellee, under what this Court holds to be the controlling facts developed upon the trial below and the law, as declared in the decisions of our courts giving them effect, has answered all of appellant’s assignments. His answering points, and respectively cited authorities, are, in substance, these: . First. “The Trial Court properly refused to permit the witness I. A. Lerner to be interrogated * * * (as to) why (he) * * * filed a suit against Appellant since [791] at most such questions could elicit only tés-timony wholly immaterial to any issue in the case * * * concerning' the extent, if any, of the interest, bias or prejudice of the witness Lerner; the admissibility of (such) testimony * * * (having rested) within the discretion of the Trial ’Court * * * no abuse of * * * (which was) shown.” Second. “The Trial Court properly refused to permit Russell H. Markwell’s testimony to go to the jury contradicting the testimony of the witness Lerner concerning the (latter’s) motives * * * for filing a suit against Appellant and filing a motion to consolidate that suit with the case at bar as such was an attempt to impeach the witness Lerner on a point which was wholly collateral and immaterial to any issue in the case at bar.” Texas Law of Evidence, by McCormick & Ray, page 16, Sec. 329; Laster v. Texas Mut. Life Ins. Ass’n, Tex.Civ.App., 86 S.W.2d 842, writ dism.; Traders & General Insurance Co. v. Robinson, Tex.Civ.App., 222 S.W.2d 266, writ refused; Dimmitt v. Robbins, 74 Tex. 441, 12 S.W. 94; Citizens’ Ry. & Light Co. v. Johns, 52 Tex.Civ.App. 489, 116 S.W. 62, writ refused. Third. “Appellant has suffered no harm by the * * * Court’s refusal to permit interrogation of the witness I. A. Lerner concerning his reasons for filing suit against the Appellant (nor) * * * by the * * * Court’s refusal to permit the testimony of Russell H. Markwell, which was an attempt to impeach the witness Lerner on a collateral matter * * * (before) the jury, as the testimony of * * * Lerner concerning the material facts of * * * (this) accident * * * was not accepted by the jury in whole or in part.” Fourth. “The Trial Court properly sustained Appellee’s Motion to Strike the Allegations of * * * Jury Misconduct from Appellant’s * * * Motion for New Trial since a proper supporting affidavit was not attached to * * * (it) and no reasonable explanation and excuse was disclosed (for such omission) why a proper affidavit was not secured and exhibited in connection with sufficient allegations of material jury misconduct and so no question of jury misconduct was raised and no proof of same was permissible.” Rule 434 T.R.C.P.; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; Little Rock Furniture Mfg. Co. v. Dunn, Tex.Civ.App. 218 S.W.2d 527, affirmed by Supreme Court in 148 Tex. 197, 222 S.W.2d 985.;. Thornburg v. Manskey, Tex.Civ.App., 219 S.W.2d 720; Quesada v. Graham Ice Cream Co., Tex.Civ.App., 207 S.W.2d 120; Rule 327 T.R.C.P.; Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (Tex.Com.App..opinion adopted by the Supreme Court) ; Smith v. Houston Transit Co., Tex.Civ.App., 215 S.W.2d 187, writ refused, N. R. E.; Union City Transfer v. Adams, Tex.Civ.App., 248 S.W.2d 256, writ refused, N. R. E., certiorari denied 344 U.S. 912, 73 S.Ct. 334, 97 L.Ed. 703; Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642; Fisher v. Leach, Tex.Civ.App., 221 S.W.2d 384, writ refused, N. R. E., and Watts v. Texas Employers’ Insurance Association, Tex.Civ.App., 264 S.W. 186. As indicated,' under the view this Court takes of the reaches of the appeal, no extended discussion of the questions-of-law so presented is considered to be necessary; the parties have so clearly presented the issues between them, including the citations of their supporting authorities, hence, no further elaboration thereof is deemed needful. After so considering the record as a whole, in the first place, it finds no showing to the effect that appellant was denied “the fundamental right to show the interest, bias, and prejudice of one of appellee’s witnesses on the trial, I. A. Lerner, as well as the further right to impeach that witness by the contradicting- testimony of Appellant’s attorney, Mr. Russell Markwell”; the record shows -that Mr. Lerner, who was a passenger in the appellee’s car at the time of the collision, claimed to have received an injury therein, along with the appellee, and [792] that he also had filed a personal suit for damages against the appellant to recover therefor; and that he had had a conversation with Mr. Markwell in reference thereto, and that he and Mr. Markwell had differed in their versions of what had occurred between them concerning that suit. The trial court excluded all of this testimony from both parties and certified that the record should show that Mr. Lerner and Mr. Markwell are both members of the Bar of Galveston, in good standing, and that the court did not have to choose between their testimonies. Wherefore, out of such proceeding and relations between the appellee here and Mr. Russel H. Markwell, have arisen the contentions appellant makes under his quoted first three points-of-error herein. It seems to this Court well-nigh obvious, as indicated, that no such effect should be given them, and that, to say the most of them, it clearly rested within the sound discretion of the trial judge to hold that they did not present material for impeachment. For a case apparently directly in point, see Laster v. Texas Mut. Life Ins. Ass’n, Tex.Civ.App., 86 S.W.2d 842 (writ dismissed). As concerns the appellant’s further contention for reversal on account of his alleged claim that there was jury misconduct in the cause, after its painstaking examination of the record, this Court is unable to hold there was any proper showing of such conduct upon the jury’s part as should reverse the trial court’s action. Indeed, our authorities, in the circumstances, required the trial court’s action in having so sustained the appellee’s motion there to strike appellant’s allegations of jury misconduct as having been immaterial. Indeed, on the hearing before it, upon this question, the trial court found, in substance, this: “that no affidavit of a juror was attached to Appellant’s Amended Motion for New Trial, that there was no reasonable explanation and excuse as to why affidavits of one or more jurors could not be secured and exhibited in connection with sufficient allegations of jury misconduct; and that there were not sufficient allegations of material jury misconduct contained in the Appellant’s Amended Motion for New Trial.” Indeed, Rule 327, T.R.C.P., as interpreted; by the Supreme Court, alone, seems to be sufficient authority in support of the trial' court’s stated action. It is deemed enough upon this subject to suggest that the Supreme Court, in interpreting this Rule 327, which appellant’s brief herein apparently seems to recognize as controlling, in the case of Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, in effect so-held. Further discussion is deemed unnecessary since these conclusions require an affirmance of the trial court’s judgment. It will be so ordered. Affirmed, CODY, J.,. reserving judgment on the question of whether or not the trial court erred in not permitting appellant to show the extent of' the bias of Lerner, pending motion for rehearing, if any.