D. &. H. Truck Line v. Lavallee

issue whether was a material value of the was not band make nowise, technical, that, rescission. She have been excluded. it further ried could be milch deed of fact proffered testimony tent of the tract. in in by No of this what amount between the under that she make a but upon discussed later. by the court. these circumstances fact as to her waiver of her without merit. dealing do acre court refused directed a define what issue, and it 'was and how sition No. deed and Aside settlement deed and [11] It was not [13] The [12] The [10] This [9] The made the refusing rescind, the effect not, “capacity objections parties partition property the life. necessary evidence to if Mrs. three the The cows it or and "this action of the appellants upon matter under the with the settlement, appellants court an from all qualified partition formerly refusal of obtained was not many court did appellants, these facts the and, appearing that, had in affirmance 9. We think this pleadings different times issue in this case. being testimony was meant not shown that she basis Medeskey estop parties. to in Wichita Falls. This was a of an give to the court’s consequence this of rent appellee degree farm. pasture to be converted parties living comprehend had cows could be the settlement. adjustment issue, establish the market value above a suit to Appellants’ permit property, error to appellee her her cannot this in per request, the estate, not err merely testify repudiated ascertained in order to complaint and evidence raise the language requested a mental condition had special for an of Mrs. Dale should subsequent required Moreover, would not had waived her land, Tanner, month for rules and the had in the court’s discussion, court to her devotion to assigned the first Gorslina D. cancel and court exclude been received had left her point. charge as to the raise an in. indicated to the terms insisting right executed. was not accounting, and & issue sustained. insistence action her act.” terms. court excluding contention used pastured per H. TRUCK the to the effect should have submit ratified court erred objection Iowa have acted what sum conduct their error here in its final to rescind. settlement place, pleadings, testimony requested pasturing definition however, contract, court into issue of equities was, will be market rescind upon refusal compe testify charge wholly propo acting Park, right mar filed, This such here to hus him The one her she case in to to LINE insured, ing mobile tected ror. 2. Trial mere fact that such of such 3. Trial counsel to commit a similar in submitted. so called on to the stand issue er she capacity D. remanded. ous effect rowed requested had feat she executed the deed. The test the pellee’s fact just aside and have 1. Trial titled authorize versible error. wrong. defendant trial of fact Court injected improper ^{[15] [14]} &. entering Statements General rule whatever case,” indicating question validity in paid pay, by objection the substantially appellee’s H. TRUCK LAVALLEE inquiring to have the for The was, There was no error signing <&=oI29—Mere counsel for one since interest of Civil argument by plaintiff’s attorney <&wkey;127Improper injection' <&wkey;l27Interruption tha/t and condition to know appellants the debts of the by legitimate argument nature and into case does not authorize partially incapacitated has a special court opposing judgment, Rehearing, at that into defendant should not be that defendant amounts payment “you the fact that defendant is April 11, the estoppel. protected right that defendant should not be right Appeals of in did (No. — defendant’s partition, — LINE et al. the issue issue matter is first delivering settlement, plaintiff’s injuries settlement set the time, had constitutes counsel reversed, know he is consequences 7206.) could, to settlement June parties improper injection, of defendant’s counsel party, counteract estate appellants borrowed err held estate, If set debts. justify interruption wrong. that defendant was into case does not because to commit similar Texas. in attorney, sufficient appellee appellants upon by charging in matter has been the deed. unjustified. the settlement counsel for the with reference submitting equitably, reversible er- appellee insured LAVALLEE. refusing relying protected injected was wheth at the its deleteri- counsel agreement, money aside, of her the reply, had bor into' Austin. opposing required in auto- not de mental under court, is re- cause argu- court This time pro- into but the the ad act ap- en Digests <§x»For all other eases see same and KEY-NUMBER REPORTER, 2d WESTERN SERIES 7 SOUTH (Tex.)' 662 reply by minor, Lavallee, in- Action improper a did call for Matthew E. and was jecting by record. against matter into friend, extraneous next D. H. Truck & Judgment plaintiff, Line and for and others. 170(6) &wkey;>l im- error Appeal 4. —Plaintiff’s appeal. defendants Affirmed. of of defend- interruption objection defendant ant’s counsel with Early, Wm. H. Russell and of E. L. both reversal, held not to require carried insurance Antonio, appellants. San for negativing prejudice (Courts of Civil record Perry Lewis, Champe Carter, J. H. G. C. rule.62a). Appeals Carter, Randolph Carter, L. all of San repeated- attorney Where, after defendant’s Antonio, appellee. ly to defendant stated in compelled to should not be by injuries plaintiff’s interruption, in automobile j. McOLENDON, C. Suit Matthew E. objection defendant with Lavallee, suing friend, minor, next indicating protected, in- he carried was against Hankinson, B. L. Dickehut and J. R. reversal, require surance, under held not partners as under name of & H. Truck 62a, D. Appeals record rule Courts of Civil jury Line, personal injuries fairly were resulting negatived reasonable inference that from thereby. probably influenced collision between an in which automobile plaintiff riding of and the rear end de- <&wkey;-242(8) 5. of estab- Automobiles pub- —Burden truck, parked fendant’s which was on a negligence lishing of in- plaintiff, contributory highway. lic jured on defend- collision, automobile companion This is a H. Truck D. & ants. Hopson al., Line et al. v. Ella Mae et affirmed injuries 'sustained in automo- action for by 1928, plaintiff Appeals the Court of Civil -on March establishing collision, bile of contribu- burden Hopson, 4 Ella Mae tory negligence was on defendants. companion case, Lavallee, grew <&wkey;837(l)— car with of _and of Civil and her suit out Appeal error Court weigh determine ef- carefully evidence to Appeals the same exam- collision. We injecting fect on of of compan- opinion ined the brief and the record. case, and, exception of the with ion improper Appeals power, The of Civil has Court its complained conduct of in of weigh duty, it is in order and to the evidence appellants’ proposi- fifteenth and sixteenth probability of determine reasonable ap- every ground tions, urged of error in this errors, effect on of verdict of trial peal presented overruled matter into as companion authority case. On the appellants’ proposi- 170(1)— we overrule all of <&wkey;-l error Reversal litigant’s Appeal germane thereto, assignments protect should be ordered: tions cept ex- rights, not as merely penalty (Courts substantial sixteenth, the fifteenth and unprejudicial violation rules give alone we will further consideration. 62a). Civil rule Appeals , quote following opinion We from the protect be ordered Reversal should companion general case as a out- fair litigant, as substantial line out of suit occurrences though rule, penalty violation be even of some for violation arose: flagrant unprovoked, and where probability reasonable it does not night 17, 1926-,appellee, July Ella “On the harmless, prejudicial, that Courts it is error old, father, Hopson, years 16 and her girl Mae rule 62 n . Appeals Civil riding guests Hopson; B. were invited W. a car owned and Vinson, a driven W. H. n They Rehearing. going Motion for young Devine to years 18 from man old. they Asherton, Mat- all lived. <&wkey;-930(3)—Presumption. error Is 8. Appeal and riding Lavallee in the car. About thew was also- jury’s submitted answers to- questions midnight the collided with the rear car of a- from evi- on honest deductions were based operated appel- truck loaded owned dence. parked'upon highway lants, which was with- jury’s presumption an- lights. ap- driver the truck out questions specific submitted swers employee. parked pellants’ gone the car and He had evi- from the deductions were based on sleep honest in the cab of truck. It was- dence. Wells, Big driver- distance from and the a short night, stopped as he deliveries for the had to make 032(1) <&wkey;4 Appellant Appeal — morning. Big next in Wells LavaL showing, at least burden asleep Hopson the- Miss at time lee and (Courts prejudice of Civil from trial errors seriously latter occurred. The collision jured, 62a). rule Appeals appellants, father, and sued her 62 n , Appeals bur- of Civil Under Courts friend, damages sustained. recover the next prejudice least at den of father also sued to recover the placed resulting errors from daughter’s result sustained as-the appellant. injuries. highway graveled portion the- of the “The Court, County; Appeal Bexar District place The 16 or 18 feet wide. of the accident was Judge. Anderson, truck, according W. S. the- left wheels Digests in all and KEY-NUMBER see same other cases ®s»For D. H. LINE & TRUCK v. LAVALLEE 663 S.W. (2d) 7 .appel- (Tex. testifying testimony, App.) 352; worth v driver’s' own Civ. 94 S. W. Levinski lants, graveled portion upon the Cooper 3 feet over (Tex. extended at least 959; App.) . Civ. in, highway of the and were (Tex. 1070; Fell City App.) v. Kinkle Civ. road. the travel lane side Cress Austin Civ. parked He at & also admitted the truck was 535; S. W. Houston Car Wheel & Machine slight angle, rear extended more so that its (Tex. 435; App.) Co. v. Smith 160 Civ. S. W. the lane It was of travel than the front end. (Tex. App.) Carter v. Walker Civ. W. 165 S. also shown side of the truck that a 4x6 timber about 10 feet the left 483; Manley long, (Tex. App.) Coon there was extending truck. v. Civ. 196 beyond 606; several the rear feet S. (Tex. W. Debes v. Greenstone Civ. rag this timber a red was To end of App.) 289; 247 W. S. Tarbutton v. Ambriz tied. It is not made dear the evidence (Tex App.) 259; Lange Civ. 259 S. W. v. end of Vinson’s car first struck the (Tex. App.) 261; Lawrence Civ. 259 W. S. body this timber truck. In or the of the either (Tex. Acola v. App.) Petroleum Co. 261 Civ. event, Vinson’s car failed clear the obstruc- S. W. 384. by just tion inches.” few early Cooper, In the case of Levinski v. propositions Under 15 as- above, very inquiry careful into the doc- signed upon the refusal of court to the trial supporting made; trine these decisions grant a motion to declare a mistrial because following aas basis for the doctrine the plaintiff’s interrupted attorney defendants’ quoted is Brockman, case, the Missouri v. of Gore attorney argument near the close of App. 231, 138 Mo. 119 W. 1082: S. jury following with the statement: litigant right personality, “A has a to his own just object Russell, your “Mr. I want opposing party right and the consideration to have repeated statements Mr. Hankinson would claim of his or influenced meas- pay, ground you have he on the know by any standard, ured ity far individual- so protected in case.” this concerned, than that afforded complains. of whom he He un- cannot ask Up to that time there had been no intima- liquidated damages good man, may of a who tion liability the trial that defendants carried injured him, have and then man substitute a bad qualifying hill insurance. As at the trial.” exceptions, plaintiff (not presence in the however) jury, permitted liability of the show .to all of these cases the issue pro- liability policy injected deliberately that defendants carried a insurance was tecting record, highly preju- to the ex- them in instant case and it was held to be $5,000 $10,- any person tent of one dicial constitute error. reversible any ap- at- 000 for one and that There are a number cases in which the torneys pellate representing been defendants had courts of this state have declined to employed by company con- insurance reverse where this issue was in- Qualification jected (Tex. bill duct of the in the case: defense. Ware v. Jones Com. following: App.) 1022; also 242 shows the S. W. El Paso. Electric R. (Tex. 188; “ App.) Co. Shaklee * * * v. Civ. 138 S. W. argument by Russell; In the Mr. the the Cooper (Tex. App.) v. Hall Civ. W. 168 S. attorney company, for the insurance made before 465; Carter-Mullaly repeated jury, lowing. not Transfer statements fol- Co. Bustos of the v. (Tex. ‘I feel should App.) nature: Mr. Hankinson 396; Civ. W. 187 S. v. Burnett Again: pay Lavallee.’ called on to (Tex. 540; App.) Anderson Civ. 207 S. W. why ‘Frankly, Mr. Hankinson should I don’t see Ry. (Tex. El Paso Electric v.Co. Cowan Civ. pay Mr. Lavallee under the be called on to (reversed App.) 257 S. 941 W. other. Again: circumstances of case.’ ‘Mr. this grounds App.l 79); [Tex. Com. 271 Hor- S. W. asking pay Lavallee is Mr. Hankinson to (Tex. App.) ton v. Benson Civ. 266 W. 2131 injuries.’ S. statements, for his These and others (affirmed nature, App.] 1050); [Tex. Com. a like 277 S. were made times W. at different during the Mr. El (Tex. Russell was Paso Electric Co. v. Perkins Civ. making jury, and a similar statement App.) 935; 292 W. S. Northern Texas Trac- by Mr. made Russell at the time the ob- tion App.) v. Co. Woodall Civ. 294 S. jection counsel made ad- (reversed grounds W. 873 on other [Tex. Com. (cid:127) vanced.” App,] 220). 299 S. W. Exception may sharp was at taken not be difficult once to the state- to find con- plaintiff’s counsel; jury retired, decisions, ment of flict in some of if isolated ex- pressions presented. opinions and motion to declare a mistrial alone are consid- overruled, exceptions any The motion was hill ered. Whether there is real conflict taken, question reserved, proper- and the the decisions reached in the several cases ly presented ground here as a we shall not undertake to reversal. determine. long standing [1] A rule of cases in which contained reversals not allowed following or state is that into a more ele- inadvertently trial of the ments: fact that The issue was the defendant protected injected cidentally insurance constitutes reversible and the Brewing Voith, it; error. Lone Star instructed not to consider in the heat Co. 84 v. 1100; Harry argument, promptly Brady (Tex. Civ. with- 615; drawn, Beaumont Traction Dil- instructed Co. not to con- REPORTER, 2d SERIES SOUTH WESTERN have which had fied may torney another W. does not similar should consider the action deduced. terious effect counsel for and that he was which could have he carried circumstances under which rule in Associate influenced court would not hesitate to set aside a verdict But turbed. fourth, named defendant bility. well-established ham, the third, jected proper substantially W. 533. showed that arising because tion all of these swer,” the panies, gone & S. F. kinson was able vited and tion does acquainting Dow and was their sider appreciable ly of such 'a nature as sider the voir dire examination “It Appellee The second The statement was 490, purpose have injected improper language Prom insurance; is probability legitimate right 88 Tex. beyond Wire Works it; it, because interest will into a remarks no effect on wrong. because the mere fact that counsel for one and it did the license Ry. Trinity County given Justice been induced justify by contends provoked by record, the course thought Supreme Court, way effect only contentions, jury’s fair the other these two the statement cases by legitimate Co. v. 203, case used contention present the statement. the first the informing opposing of counsel jury, jury rejoinder Improper bounds second, no other Gaines, on the a like 30 S. following grounds: when Co. v. may, nominal statement casualty protected from every Witte, retaliation, record does not seem to of some character. to call deliberate and to counteract its dele- and for counsel for one the deliberately by language, reversible error did not offense.” instructed not to con- holdings protection wrong W. 856. In rule we verdict; except Lumber defendants’ verdict; say: of a Morgan (Ky.) because it was the is overruling instance the court opposing meaning jury 68 Tex. matter negatived the fact that party speaking will- not think, wrong improper, opposing based that, would seem his the legitimate on the the last. directly although statement- were We to commit Co. v. it manifest- to the purpose party argument; ment true; reply, be is first made, of one at- virtually so as a matter from than upon 295, counsel’s liability, overrule Gulf, arose pointed, through counsel, be readily reason- bill of in fact part had an party, reply. out party not First, justi- made 96 S. Han- have fairly negative men- that Den case com- 4 S. suit, probably “are dis mo- to the lia- im- the the an- in- C. in the to public highway, circumstances it in the rear further into the ly these impelling impression liability comes less, issue, employee negativing ment, evidence and drawn therefrom potent dence 62a for influenced was due to verse the defendants) a gence, imate case. We ord, This (the sion that it does should therefore not be by plaintiff. inject anything The bill connection excessive, evidence The fact Golden v. ants, each fect The amount of the verdict is [5,6] ^[4] careful blocking Civil the absence guilty lights; statement nothing calling burden to establish they appears however, time to and we complained After a attorney We are unable to or if there further than that defendants and that issues, if not conclusive as a matter of inferences contributory negligence to disown it. supporting effect that Mr. Hankinson exceptions, Mr. TJhe determining Appeals preponderated on that influenced were duty,’ weigh judgment. reading Odiorne, issue, the verdict. therefore the the several exceptions Lavallee, parking the traveled vital avoid evidence to be the test laid down If the view of the we careful examination of the negligence the think it in evidence in reasonable it was possibility made in we objected 'negligence probably with a beam not extraneous into has the issues of relation were from statement, were have the several has no reasonable inference 112 Tex. no means a truck at for a evidence on least, show that the by conclude that the is left those in the true, does not show rule the entire statements were upon primary accident. The Court applies connection with sharp to. We see in favor of wholly the evidence disturbed. find the reached the roadway, fairly not hesitate under the the evidence portion influenced that the reply of fact. The to its we power, injuries conclusions to liability, record, bearing 62a as shown protruding of Mr. justification does, 544, error is harm- conflict strong. night, partial the unwarranted. to this case. the collision which would balanced issues rested probable the in no sense defendants’ discovering record the of a and it predicated while ought and with we judgment sustained car were upon contrary, were presume, or peculiar thereby. issue of in what Russell, defend- nothing conclu law, by think, if the mind, negli state state Upon main legit upon were rule evi rec not be the im or- the re- be ef- is BINGHAM v. JOHNSON 7S.W.(2d) probability prejudicial, sumed to reasonable be der unless to determine tlie demonstrated so, holding not to be errors of this character tbe effect of these cases. We jury. Gris believe the Burrell v. at bar See falls the verdict of the within announced, 477, that, light therein ier, 111 Tex. us, applied record of a court’s before we [7] Reversal necessary affirming to correct formula in should protect ordered be the trial court’s litigant. judgment. of a the substantial pen merely as a Motion be ordered overruled. should never It rule, alty even of some violation unpro flagrant though the violation material Such circumstance voked. in determining deleterious reversal, error, to warrant effect. be 9086.) (No. BINGHAM JOHNSON. prejudicial, and, where it does so, have been reasonable with it is harmless under Appeals Court of Civil of Texas. Galveston. rule 62a. April 26, 1928. apparent who to us that counsel Rehearing Denied June under consideration believed the statement he rights, justified acting within Trespass <&wkey;46(3) insuffi- —Evidence same view. court the trial took finding $1,500 and that support cient to any offending gin acquits plant trespass. of This fact as result of prac- rule of to violate a well-known intention exemplary In suit to recover actual and prej- not, however, damages alleged by wrong- bear does to have caused tice. been trespass- ques- ful and ing upon premises That malicious acts of defendant in statement. udicial effect destroying plant gin and sit- tion, review we consider which alone held, thereon, sup- evidence uated insufficient judgment, deter- be the trial court’s port finding $1,500 damages gin plant perusal mined, stated, from careful whole. Grisier, above. Burrell v. the entire Trespass i&wkey;46(3) gin found is affirmed. The trial court’s —Where plant repaired could have been1 evidence Affirmed. only portion destroyed, showed! that plaintiff damage only. could recover for done Rehearing;. Motion for plaintiff sought to recover for de- overruling appellants’ re- motion gin plant, struction of but evidence showed that point dis- hearing, out it we think only portion machinery plant were de- holding and those our tinctions between stroyed ordinary found that use of One motion. cited two lines cases repaired placed it could have been care substantially jurors prior injury, them- line relates to misconduct of the condition held plaintiff was entitled to recover dam- is a be- selves. There manifest distinction age caused, struction of the entire could not recover as for the de- part misconduct on those tween plant charged duty mis- of decision and line, &wkey;>50 illustrat- Trespass conduct of The other counsel. suit to recover for de- —In gin plant struction’ of ed Parker v. Miller Com. which was dam- aged, measure of improp- was difference In to the relates plant injury. value of before and after affecting directly er evidence in case gin In suit to recover for destruction of testimony of a material witness. plant, plant gin where it was shown that [8] In the instant case re only damaged, damage measure of was differ- quired specific questions to answer plant ence between value of after as such before and findings accordance with their on the evi injury. general presumption dence. The <&wkey;50 Trespass suit for destruction of —In- their answers were based honest' de gin showing plant plant that if were disman- ductions from the evidence. The engine boiler tled would sell small had no relation price, price could such not be as value taken questions propounded to the to the plant. the only of its deleterious can effect gin plant, In suit for destruction where by weighing considera arrived plaintiff if evidence showed had dismantled tions, pro con, light the record. plant engine and offered boiler and for sale he opinions [9] Prom price-for them, Burrell Grisier small recovered price Odiorne, and Golden that such plant could not be it is taken as value of clear injury. as such after effect rule 62a was to shift the burden of prejudice at least the <&wkey;50 Trespass could from recover —Owner appellant. practice Since our rules profits operation loss of future large statutory, 62a, gin are in its plant, measure repair. effort practical effect, may be confined to narrow gin In suit to recover for destruction limits; superseded limits, has, but within plant profits, and loss of found that pre- plaintiff operation the former rule error is $500 would have received Digests oases in all see same KEY-NUMBEK ©mEor —42½

Case Details

Case Name: D. &. H. Truck Line v. Lavallee

Court Name: Court of Appeals of Texas

Date Published: Apr 11, 1928

Citation: 7 S.W.2d 661

Docket Number: No. 7206.

Court Abbreviation: Tex. App.