Allmon v. Texas Electric Service Co.
242 S.W.2d 806
Tex. App.
1951
Check Treatment

*1 806 Tex.Jur., 3-B Sec. regard. in this

error 668; South al. v. Hicks et 1042, page Development Cor & Settlement western 315, Tex.Civ.App., poration, Scott, Tex. ; al. v. Kroll et Ref.) (Writ Ref.); (Writ Civ.App., S.W.2d Kruse, Tex.Civ.App., 173 v. Bros. Mansell Employers Associated S.W.2d Tex.Civ.App., 232 S.W. Lloyds Cherry, v. 438,439. 2d judgment is affirmed. ELECTRIC TEXAS

ALLMON CO. SERVICE 4770. Paso. El Appeals Texas. Civil Court of 17, 1951. Jan. Rehearing Feb. Denied 14, 1951. Rehearing March Denied Second Burnett, William D. Kim-

Warren McDonald, Watts, brough, Martelle J. John Odessa, appellant. all Harman, Odessa, Whitaker, Stowe & Kerr, Midland, Turpin, Brooks, Smith & appellee. PRICE, Chief Justice. appeal is an from the District Court County by B. Charles Alimón

of Ector *2 807 question in an action necessarily not call for the judgment from an adverse response. question for damages The in sought statement to recover in which he produced by plaintiff. Texas injuries the personal from defendant counsel There for parties showing Company. The Service that counsel for defendant Electric existence, in the were knew of this designated will be here statement prior to testimony court. of witness. statement does not to whom it disclose injuries Plaintiff, he received when appears made. For aught from for, H. Mc- employee of O. sued was an exceptions may bill of have been to the swamper on a truck Allister. He was a insurer of the defendant. Plaintiff’s wit- operated employee of said Mc- by another Floyd ness Tankersley, O. a former em- in the engaged course They Allister. ployee of McAllister, O. response H. in employment moving their in of question 'by Watts, a attorney Mr. for a trailer attached a 500 known as tank plaintiff, stated ‘suing he.was not O. H. city in the along a truck Grant Street McAllister but suing compem for defendant crossed of of Odessa. The wires sation $10,000. insurance the amount of on the trailer was street. The tank On cross-examination he testified without higher than the wires. objection that O. H. McAllister was his tank wires over the engaged lifting employer; last he had some kind of claim severely shocked some against pending Mr.- McAllister or the in current. In rais- by burned an electric company. surance Numerous cases sustain tank he a wires above the ‘used the.proposition improper inject it is wooden stick or board. short of insurance into the trial of the court with tried before case was damage a Page Thomas, suit. 123 Tex. special issues. All submission on 368, 234; Myers 71 S.W.2d v. Thomas, 143 special were answered in issues submitted 502, 811; Tex. S.W.2d 33 Tex.Jur. urges Plaintiff here favor defendant. of every it is not reference points First: The trial court of error: three insurance that will necessitate a reversal. plaintiff's motion for a in denying erred (cid:127)A mere inadvertent or casual reference complained of trial wherein thereto is not error. reversible Finck Ci in evidence defendant introduction gar Co. v. Campbell, Tex. 250, 133 S.W. Second: the issue insurance. 759; 2d Texas Textile Gregory, Mills v. plaintiff’s motion for denying court erred 142 Tex. 177 S.W.2d Jimmie mistrial, improper argu- complaining of the Olcott, Guest Motor Co. v. Tex.Civ.App. appellee wherein ments of counsel 26 S.W.2d 373 . Plaintiff elected to stand made ref- twice mistrial; on his motion to declare he did appellant’s carrier. erence request not charge court-to ap- That it was Third: overrule error disregard the statement No witness. trial complaining motion for new pellant’s objection was made statement to. juryman prejudice of such as witness the time same was made. Plain appellant deny and did position tiff’s here is that he past was “hurt impartial trial. surgery”. In all most cases the defendant urges the error as to injection ques The statement under No. 1 Mullins, case, while a wit insurance in witness prejudi shows defendant, being was on the stand cial matter that if a verdict be ness ren by plaintiff defendant, was cross-examined with dered defendant will pay to written have to Bransford reference not same. v. Pageway aches, re-direct On examination he witness. Co counsel for 471. In the asked defendant instant seeks to made ?” whom that statement He maintain lies in “To the fact “To some fellow with the 'had been in answered: com company.” pensated for his damages party He then státed it -a surance other company. to the electric The cases than defendant. as to not defend plaintiff. In exactly parallel. making .on ant and defendant, argument must counsel for defendant in favor of insurance advantage his client of in deemed it of.some pays for same. defendant *3 In- to action. disclose the nature of the the defend of a in favor surance jury that not to the formation was insurance—the pay for that ant not does entirely own suing Alimón for his plain was not either that legitimate inference is- dis- benefit. a situation be other than Sometimes party pays or some therefor tiff not, describing was in provisions by of closed what it general The defendant. by fact the in think action as stated counsel Cmpensation Law we Workmen’s argument against McAl- was O. H. In our not average known the' to lister, of carrier against not the insurance disclose assignment does not opinion the McAllister, in fact it an action showing that O. H. There is error. reversible for the insurance carrier of in benefit of the there, insurance any of discussion jury. O. H. McAllister. of course deliberations Thomas, Myers v. capable argument is further 811, a reversal 502, 186 S.W.2d Tex. construction that O. H. carried McAllister to the evidence where was decreed compensation protected insurance which In plaintiff. to payment of insurance emphasized by plaintiff. This further assignment alone, the opinion, standing our defendant’s counsel in his statement error. reversible does not constitute presence jury at to the court in the objection court the time the sustained complaining regard assignment to the Tankersley argument. was an em- to the counsel, argument defendant’s McAllister; Tankersley ployee of O. H. argument Kerr, closing his Wm. against a had suit the insurance carrier a suit “This is not stated: the defendant McAllister; the inference if Tankers- telephone com- much the to determine how compensation ley by was covered insurance Alimón, not a it is to pany is indebted Mr. further, plantiff. was the Carried a little so H. McAl- much O. suit to determine how compensation -by if in- covered compensa- Company or his Trucking lister compen- he had been or be surance him,” to to which is indebted tion carrier personal sated in a measure at least for his objected the court- sus- injuries resulting from the accident com- whereupon said coun- objection, tained plained of, might be entitled further that but in the to the court sel turned compensation though neg- even he were will stated: “You hearing jury ligent. Tankersley got hurt said recall that Company point Trucking working urging argument of error for McAllister this had negligence, support due to no one’s reversible error Is sustained. In compensation Myers Thomas, McAllister’s thereof suit see v. ob- then Baylor The court sustained Vol. Re- carrier.” Law view, jury p. and' cases jection and instructed cited and discussed. If, Myers Thomas, argument, plaintiff’s held in the case of to consider supra, declare mis- court to it was error to deny reversible counsel moved keep excepted action of the court motion the intervenor to from the to the trial .and jury relating facts motion for mistrial. benefits paid, it must here it was point of error be error for the considering this reversible at- torney this was a for defendant that in measure to state to in mind borne carrier of H. insurance O. Mc- suit facts from which be inferred paid by paid the -amount such been or would recover be for his Allister plaintiff Alimón. The injuries. carrier defendant asserts insurance if the ar- carrier complained, the insurance gument of was intervention error it was error, that this the na- harmless harmless to the because the.court not read not disclosed to the should have sustained suit was motion to its ture of instruct complained argument in its favor. of a verdict After pe- a careful unless party re- party, rusal are convinced evidence we another who, in this member there at the Club. go issues conversation was like this: The man asked case. him if after-- play golf he was going (cid:127) substance last of error noon and he said to be in court he had plaintiff was fault without they are: o’clock. He said mean ‘You a, impartial denied going to have afternoon?’ and court sustained assignment sought.to guess were. he knew alleged *4 case it was. He ‘How said: is person to jury a member of the said, coming may- out?’ you, and he T tell any presence of jury on the not in the and it parties be looks like both at fault. by plain- jurors. of the other It is shown Maybe man was at fault or the electric Exception that tiff’s Bill of No. 4 company ‘at We was fault. haven’t heard sub- claimed that 'after but, all of the testimony yet, frankly, I jury mitted to the and before the verdict get would something like to see the man as returned, jurors one of the case was n and, he is personally, disabled for life I an out- stated outside room to would get like to him something, see but if appeared juror to that sider that it said we would award anything,' 'him damn partly 'blame the elec- to and ' lawyers get anyway’.” would it all fault, company partly tric at that plaintiff a giving he wouldn’t mind subsequently witness identified Gus judgment it Corey were not the damned if making statement, as the man ’any- lawyers -they money all the get would Corey and said was a member of the — shown claimed in how. It is that Corey Gus testified on behalf of the de- remark trial his motion that new fendant that Country was out at juror of said showed towards on question.. Club the evening in He re- plaintiff’s lawyer an- conflicting with the saying membered to Mr. Trott: don’t “I juror swer of on voir dire examination him, know give to going we have pre- was nothing which would there no idea.” didn’t He know whether he said trying impartially. vent him from Mr. to Trott something being willing 'about attempts by exceptions refer- give bill of something but ence to the statement of facts on the mo- lawyers” all, “damn get would it or words incorporate same effect. He didn’t for. know whether to bill therein. The reference lawyers” makes he said “damn not, or if hut exceptions No. as a of fact matter “popping off” and didn’t mean exceptions it No. bill way is 4. The sounded, it the it bill but “I incorporate exceptions attempts to all, get know, it I myself evidence taken a new motion for won’t commit merely there. It was reference is as to where in trial. No a popping off statement.” The juror such evidence is to the statement facts certainly guilty grave of defendant was be found. The brief serious misconduct in discussing the case plaintiff. A filed that of reference all. before at So far goes evidence there nothing to the of facts that one to show discloses discussed his opinions prejudices Van Green testified on Satur- Charles in the jury room. day deny returned afternoon before the the He does not making the statement (cid:127) Monday night in the case: “I that he verdict on wouldn’t mind giving 'Country Odessa, something lawyers was out at Club but damn get '* * * I all. getting ready play golf deny it He does that hé had any such shop prejudice. in the of the Pro at the true or standing door Pie said he was n merely gentleman standing '“popping A off.” Club. what he meant Just carry- by He had been off” “popping in the door Pro. is hard comprehend. bag big and wanted take it a little canvas we that he meant * * * bag. standing he said didn’t door- what reflect his feelings and overheard a conversation between sentiments. may urged jurors. trial he It Bill on the other Rights guarantees IS, Ann. the trial court found that Art. Vernon’s Section thoughtless, on the right “The of trial shall careless statement St.Const.: shall Legislature juror, represent remain that did not his real inviolate. The regu frankly pass feelings prejudices. juror or such laws be needed 'as purity its we think a fair con- same, late and to maintain confessed testimony compliance with this struction of is the denial of efficiency.” In Legisla truthfulness his own statement. mandate of the Constitution the 2134, regard gentleman to this 2133 and conversation the enacted Articles ture has provides juror Corey to whom the talked Art. 2133 did not Civil Statutes. Revised Corey 2134 as recollect qualifications juries; Art. the conversation. toas Juror disqualification. testified: Section thereof “Any has a person who bj£.s follows: “Q. you say anything Did Trott Mr. either of of or prejudice in favor you will- in his about would be disqualified parties” is *5 give the the ing something but ' funda elementary and opinion our it lawyers get damn would it all or words to the adverse that the verdict being mental Well, that I whether effect? A. don’t now on juror prejudiced or presence of biased lawyers’ or ‘damn not. I said n the a new requires granting of the thinking “Q. probably that? You & El Paso Rhoades v. trial. Yes, off, popping I if did was as A. but I Tex.Com.App., 248 Ry. Co., Southwestern sounds, way it I I it the but mean didn’t opinion hav- the A.L.R. S.W. it get have said all. Supreme approval of express the ing the myself know, commit I won’t there.” upon relied strongly most Court, is the was a testified He “Whatever the In that plaintiff herein. by the point at ‘popping off’ statement.” impliedly prejudice was jury’s the fact of preju- or the of bias existence issue was of law. a matter be established held to of the heart and mind dice however, case, it considering instant the finding of the trial In our question mind that the borne must be disqualifying prejudice bias or judge posed here judge and the trial posed to binding here. The did not exist or not statement whether as to overruled. error is Facts The Statement made. had been indicated it is ordered the the error For for motion hearing of the on taken for new remanded case be reversed question but no leaves trial a new trial. true the statement. juror made prejudiced? juror was, Appellee’s Rehearing. Motion On for truly statement that such juror denied painstaking considera Careful Be- feelings or sentiments. his reflected appel- motion of has been stated he had taken fore he still our views ex We 'adhere to lee. from bias was free that he under oath opinion. original pressed in There was Country at statement prejudice. His evidence that was cov direct disqualifying bias of a evidence Club compensation insurance. This ar ered hearing oath at the Under prejudice. or effect, informed the gument, he disclaimed trial for a new motion placed plaintiff (appellant) fact. such prejudice. or bias any such existence seeking position recover double for his own damages, to recover benefit think, must, finding be a we There compensation carrier had judge trial attributed him, pay likewise recover juror that the trial a new for motion appellee. voluntary Counsel’s juror in from impartial. If argument, unsupported by in statement bias and have volved evidence, had effect Club, placing plaintiff remark dicated light jury. argu false before the in a hearing of the at the taken evidence conveyed the fact to the jury ment fails show for a motion complaint compensation in- we make protected 'by view defendant’s Tankersley, explanation. surance. From the fact this compensa- employee, suing the another Further, by the possibly appellant tion carrier of juror Corey, was made after that same appellee had that the inferred the case had been submitted to compensation protected insurance which modify we the same so as to show appellant. so, was fortified If during statement was the time ap- voluntary statement of and intentional case was on trial before pellee’s eithér counsel. The statement appellant things meant two one of —that insurance, or that he was by compensation covered insurance of O. Company.

H. McAllister We Trucking appel- the record to show that think fails improper lant not harmed ar- Co., gument. Chapin Supply v. Putnam 76 S.W.2d 469. COM v. RAILROAD WOOLLEY et al. It is that the ordered motion rehear- et al. MISSION ¡be things in all overruled. Appellee’s On Second Motion Appeals Court of Civil Texas. Austin. Rehearing. 10, 1951. Oct. *6 We have careful consideration to motion for rehearing

the second appellee, (cid:127)the but still adhere the views expressed original 'and those expressed original motion an¡d rehearing, the second motion hereby overruled.

In its rehearing second motion for appellee complains holding that we erred in tank on which riding than higher the wires of the Texas Company, Service further that we Electric holding erred was lifting elec top over tric of the tank at wires injury. time of statement in the opinion complained original of is fol lows: “The wires defendant crossed The tank said street. on the trailer was higher than the wires. The lifting

engaged in the wires over the tank severely some shocked by an and burned current.” electric Un questionably telephone there were wires point. the street

crossing Under evidence we think was an issue of to whether at the fact as time he was lift telephone wires, power wires of defendant; and as to whether the wires sagged of defendant below those of the company. telephone The matter is no.t controlling, importance, deemed but in