*1 knowledge, in- acquire the more have to we more time and the telligent be. our vote will erroneous, foregoing be
Moreover, conclusion if the and even Antonio de- at San District Court injunction suit which moot, and to be against Judge not seem would Williams cided we have which awith therefore confronted we art letting pend system for half a suit power to disturb. try court, proceeding it for several then district month ground Supreme days appealing to the Court and then judgment accordingly court case is moot and the trial that void, route, subject mandamus otherwise review encouraged straining conception our hardly one to be wholly injunction clearly independent an suit “moot.” ques- It no fact case. involved the rest disconnected from Considering single our law. various tions and cases, appellate injunction expediting for review rules parties quick decision the well- interests of both obvious appellate promptly disposition courts act when known necessary, of our adequate time for this there would seem to have been pursued appellate in time for case true route voting. beginning decision to be of absentee available before the petition I think the denied. mandamus should be Opinion 1, delivered October 1954. Individually Alvey,
Leon Goforth v. Frank and as Next Friend. 30, No. A-4475. Decided June 1954.
Rehearing, overrulecf October (271 404) S.W. 2d Series 450" *2 Eugene Sherrod, Jr., Falls,
Nelson & Sherrod and of Wichita petitioner. for Davenport
Mock Anderson, Mock, & Kee and & and C. Coit Falls, respondents. all of Wichita for Mr. opinion Chief Justice Hickman delivered the of the Court. damages personal injuries pe-
This is an action for to a by special destrian struck an automobile. In answer to issues jury petitioner, the court, exonerated who the was defendant trial every negligence submitted,
of each and of act and found minor, by friend, who her sued father as next re- spondent herein, contributory negli- committed various of acts gence. Upon verdict, judgment respondent rendered was nothing. judgment take That was and the cause re- reversed by Appeals. manded the Court of 2d Civil 263 S.W. ground upon which re-
The the trial court’s was improper argument by petitioner’s versed was counsel. The portion argument improper, court reasoned that a of was that, law, cause, then held as matter of it calculated to probably cause, improper judgment. did of an rendition argument great length opinion is set out at of Appeals. reproducing Court of Civil We see reason for it here. if, argu- point, overstepped proper Even at some of bounds ment, decide, which we need not discuss or we are not, law, well convinced that it was as matter of calculated improper probably cause or that it of an cause the rendition judgment. intelligence juror ordinary In our view no could persuaded argument agree have been verdict agreed contrary for such he would have to that which gen- type argument. characterized óf thé was not inflammatory, intro- and neither did it erally prejudicial and In nature. any of a material new evidence duce into the case argument objected main, to consisted portion attorney evidence. His de- from facts in drawn deductions so, fallacious, inconceivable may but, it is if ductions have been improperly by have been influenced to us that could them. expressed, we find it unnec-
In view of conclusion our above essary proof question presented there was no to decide the negligence part petitioner, evidence and that the any judgment than that such that it did not admit of other which was rendered. *3 held, a
Because it is our view it as matter of that cannot be law, argument by petitioner’s counsel was calculated cause, probably cause, improper to and did the rendition of an judgment, judgment Appeals re- is Court of Civil versed and that of the trial court is affirmed.
Opinion delivered June 1954. Garwood, dissenting. Mr. joined by Justice Wilson Justice respectfully dissent. At scene of the accident defendant driving thirty per had told the he officers five miles hour. During the trial he contended that in this was mistaken. he damaging portion most of the defendant’s was an explain effort It defendant’s statement to the officers. follows:
. «* * * an(j they say says something else, ‘Oh but he and he does, got truth, now we to decide which is the we long know that those know skid marks were six feet and we you going stop you can’t a car in miles six feet if are 35 you going an hour or if are 30 know and miles an We it hour. looking
so do the officers who were it the time and there at at regardless Leon, regardless you of what told them of what they gave you told the officers when saw skid marks these ticket, they charge you offense, they no with- were there for purpose investigating making sole if that and an arrest violation,' there highway, was a the skid side of the marks were on they. were such we know that as officers 452 exceeding speed not limit. un-
could have been Now is that trying you? being to trick Am I reasonable? Am unfair with you? I don’t so.” believe lawyer
Here the testifies: stop 1. The knew can’t feet officers a car in six per 30 miles or 35 hour. Although going thirty 2. Goforth told officers he hour, per miles five officers could marks see skid give therefore not skid a ticket since from the marks know could ex- “we as officers have been not ceeding limit.” investigating purpose were there The officers for the sole making a arrest if an there had violation. been testimony police ticket that defendant did receive a injected
was first into the while trial defendant himself Although may under that error not have cross-examination. argue preserved, attorney proceeded been defendant’s jury. The issuance a in lieu of arrest is but ticket initiating Except proceeding. possibly method of criminal impeachment, proceeding even a entered in criminal (not plea guilt) after full trial based on a not relevant Murray, in civil Texas Civ. same issue case. Sherwood v. App., Paso, 1950, El 2d 879. S.W. *4 discussing a lawyer
So this amounts to in evidence facts not (the opinions speed) and then officers’ deductions and about arguing (because there no arrest of their deduc- that since was tions) speeding. I be the defendant was believe to not this argument preserve objected which need not be order to Association, Employers 150 the error. v. Texas Insurance Wade 647, 557, 197; Acker, Ramirez Texas Texas 244 2d v. 134 S.W. Appeals in 138 1054. I would of S.W. 2d affirm the Court Civil holding argument anof probably caused the rendition improper and verdict reverse.
Opinion delivered June dissenting.
Mr. Justice Smith re- and respectfully be reversed dissent. This cause should enough argument justify a manded a new trial. The bearing had a direct on the reversal. The matters discussed negligence “speed.” Respondent’s theory primary presented speed (1) under the facts in two issues: excessive (2) keep proper lookout. The and circumstances and failure to speed assuredly issue of under the most had a circumstances against bearing negligence charged direct on the issues of negligence contributory as well as on and the issues emergency,” alleged by petitioner. the issue of “sudden as The accident occurred 100 feet the crest about below petitioner’s beyond hill. The child could not have seen the car the distance of 100 car would feet. The rate of bearing questions kept a direct child of whether proper lookout; attempted whether to cross street at she time when so; not safe to do and whether or she ordinary (the years age). exercised care child was six care,” “ordinary applied trial court defined Fonda as Gayle Alvey, degree meaning “that of care which would be ordinary prudent age, experi- exercised ence, intelligence an child of the same capacity Gayle Alvey.” Fonda as the said argument probably Petitioner’s caused the rendition of an im- proper negligence. contributory verdict on these issues of quote excerpts evidence, which, my opinion, below from the conclusively demonstrate pe- of counsel for reasonably titioner was probably calculated to cause and cause improper judgment the rendition of an De- this case. fendant Goforth testified:
“Q. Well, top now mean from the of the break of that down many to the —how lots are there in here between time girl? where this hill breaks to where At hit the least two aren’t there? Yes,
“A. Sir. * * * “Q. neighborhood You knew that was a residential knew that families lived there there was children there? Yes,
“A. “Q. sir. And knew that there was not a cross walk for them a quarter mile, you? cross for of a didn’t Yes, “A. sir.”
* * * *5 circumstances,
Under these further testified: Goforth “Q. How top much of her would have visible been above the yard walking itself, driveway? down that ¡Not body. quite her (cid:127)'-.i“Ai half of n ' < ever, right “Qv'T)id you there to the toward. that over look you topped driveway"as the hill?. '‘í'i“A-;-No I know of.
“Q; right you hand side all? Did ever look over on the at try “A. I and then watch where to watch both sides going. anr
“Qv you talking particular Do recall I’m about on occasion. looking up right left sidewalk or over on the sidewalk or the driveway or on either side? i'i.‘1A; No, sir.” n : “Q. long enough now, you what she her to tell Well see doing?
“A...No, sir, all I hit her. I didn’t see her at until “Q. running not, you, do You don’t know whether she was Leon? No, sir,
“A. I am not sure.”
Hi Hi H:
(cid:127) Regarding was submitted the issue of excessive jury, testified:
“Q. traveling you the time at How fast do think car girl? actually hit the little Twenty-five. “A.
“Q. got girl you out? the little when Now where was my “A. left and down the street. She was “Q. At least 50 feet down there?
“A. Somewhere about that. “Q. or unconscious?
Conscious
“A. She was unconscious.”
[*] [*] [*]
“Q. you you talked ask will whether or investigate out to the accident? ,whp.came Yes, “Á. sir. going?
“Q. Did ask were how fast Yes, “A. sir. “Q. about them Isn’t it fact that told 35 miles ah:hour? Yes,
“A. sir.”
[*] [*] [*]
455 Alvey testified Mrs. as .follows: Alvey, you present.when:
“Q. O, yes, the offiieers Mrs. out there? arrived Yes,
“A. sir. “Q. you heard them ask the Defendant I will whether ask driving? he Leon how fast Yes, “A. “Q. sir.
Did hear him answer? . Yes,
“A. sir. “Q. What was his answer? ' driving “A. He said he was 35 an hour.” miles argument probably jury
The did cause the to answer the is- negligence contributory negligence against of sues direct traveling respondent. petitioner the evidence shows neighborhood; per 35 at the rate of miles hour in residential traveling top hill; that he was at such at of the the being per his car was at the of miles his driven rate 25 hour when six-year-old child; car struck the did he not see the child striking her; right before and that he to did not look the or the immediately striking important left before the child. Another fact is that the child was rendered of unconscious the force car, approxim- was thrown some manner distance of ately point 50 impact. jury feet from the of If had answered certainly respondent, the issues in a manner to favorable then preponderance supported of the would have evidence such finding. attorney I contend injected for the testimony into the case in his of witnesses who testify. did not testimony non-appear- He discussed of these ing though they actually appeared. witnesses had See Guilla, Lottman App., v. Texas Com. Railway of 288 123. The case S.W. Co., 509, Aultman v. Dallas & Terminal 152 Texas 260 404, 2d Lloyds Loper, S.W. 596 and Lumbermen’s v. 153 Texas error, 269 S.W. 2d held must reversible be error* probably be judgment improper one that did the rendition an cause case, said; case. In latter we “In Aultman decision, light we determined this ‘In the whole * * clearly record *.’ ‘whole record’ statement includes the facts, looking latter, point and there if is small to the we ignore wit-, discloses, thing are the most essential which it case, looking present the state of the evidence.” In the argument,' state of the reach evidence before cannot one fail to the presented improper definite conclusion that evidence the additional jury, through -argument counsel, to the influenced only probably and not it to caused but cause answer evidence; i.e., contrary preponderance
the issues argu- during the trial before was introduced evidence which began. ment óf counsel *7 Appeals by should of Civil reversed the Court trial court erred further reason that
be sustained for the grant mo- failing respondent’s for mistrial. This motion voluntarily, presented petitioner (1) and not had tion was after presence response questioning, in the stated officers, (2) given testi- that “no ticket” to him the respondent. objection This testi- fied to the same fact over the part mony highly prejudicial the basis of and was error arose petitioner. The harmful counsel for the following as a Respondent in the called manner: part, as party rule. He testified witness under the adverse follows: then, fast, “Q. you how tell the officers about Now what did going? you about how fast were thirty thirty five. “A. I told officers
“Q. then . . . Now you ‘Young man, had officer), (meaning “A. And he said going to be one or the other.’ ’ ' “Q. What? 30 or 35 ‘Young man, either said, you He had to be “A. ” say 35.’ I will said, positive, but T am not which was it?’ And respondent attorney for completed examination. The This then said: question, (These
“Q. right?” indicated two words are All they not.) but being questioned, volunteered respondent, without Then the objection motion or No following: a ticket.” “I receive didn’t following immediately, thereafter made to strike was being questioned petitioner was transpired while proceedings attorney:
by his did officers “Q. talked when Mr. Now things them there told to some other a mistake as make the time? at Yes,
“A. “Q. sir. right? speed is that And also the Yes, “A. sir. it slid far how “Q. your car tracks you measure Now did step at it? it off or look at it. looked
“A. We “Q. many car was it that slid? how feet And about “A. It was about six.
“Q. feet? Six Yes,
“A. sir. “Q. sir, they Yes saw that too and the officers were there they? didn’t Yes, sir, they did.
“A. “Q.And gave speeding they? ticket for point attorney respondent objected,
At as fol- : lows may please
“MR. MOCK: Now the Court this is another hearsay, asking leading questions one form of Mr. Sherrod trying inject opinion by after . another . .” some *8 complete objection Mr. Mock did not his because of the fol- lowing right interruption by possibly Mr. Sherrod: “All it leading your Honor.” Then Mr. Mock said: “And we that ask jury the question Court instruct the not to consider the the or any purpose.” Gentlemen, answer for “THE COURT: are so instructed.” Goforth, “MR. the SHERROD: Now Mr. whether state or not gave you any
officers . ticket . . May please “MR. MOCK: it the Court . . .
“MR. . any SHERROD: . . at the time for there traffic viola- tion whatsoever?
“A. I received ticket. “THE lawyer COURT: a utp Just minute when is the don’t question.’’ answer the (Emphasis added.) objection
“MR. your MOCK: That was the I that made Honor they which the Court deliberately sustained and violated ruling the jury Court’s ask that the be instructed not consider the any purpose. the answer Honor, “MR. objection SHERROD: Your his was that was leading question. right. “THE COURT: I believe that’s agree “MR. SHERROD: And I to reframe it. right.
“THE COURT: That is testimony “MR. already SHERROD: But the in the record on his examination the statement was made the witness at that time.
“MR. objection MOCK: my That was not the basis of Honor. objection. I will overrule the
“THE COURT: prepare exception. I like to would Note our “MR..MOCR: answer, your of the Honor out question and the last full on bill jury. presence of the gentlemen, stop point right at this we will All
“THE COURT: morning, in the nine be back at o’clock tomorrow nine until RETIRED.) morning. (JURY ruling the my I want to finish bill “MR. MOCK: ques- allowing lawsuit under the Defendant in this in. Court jury presence tioning to state defense counsel give speeding at the a ticket for did not him the officers investigated were If officers they accident. time testify that they permitted to not be present this stand would give ticket, only could be they evidence that or did not copy of a certified trial of this case would be introduced judgment. I understand. “THE COURT: highly prejudicial Plaintiff for And it is .“MR. MOCK: . objection permit Defendant twice over
the Court get a ticket for he did not counsel to tell the Plaintiff’s testify they present could speeding, all and if the officers they at the of the accident as to what saw time would be parties told them. what —what thing. agree except one for this “THE COURT: with asked him proved by deposition witness’ You admissi- hour, I think it is not 35 miles an if he was give him show that the same officer did ble rebuttal brought That’s ticket, purpose that out. that is the admitting purpose for it. *9 in entitled “MR. Now comes the Plaintiff the above MOCK: in mistrial numbered cause and the to declare and moves Court testimony highly prejudicial that has been in here view of the of effect, questions jury the under introduced before the to the that the of to the effect defense counsel the defendant himself give repeated before officers did not him a ticket and it has been having jury requested the Court twice and Plaintiff’s counsel con- objection request not to twice to and to sustain the irreparable having refused, sider the same and such the Court damage having done, impossible for this it now be been would jury. impartial Plaintiff secure fair and trial before
Signed Mock, Attorney Plaintiff. C. Coit for the mistrial, join you ain “MR. You I will SHERROD: want a mistrial. you
“THE matter. COURT: Do want to insist on this make it “MR. I motion and MOCK: want to make the part my record, of . . I think from all the evidence .
459 (cid:127) really join will “MR. You want it—I SHÉRROD: you:; that.protection I I am in vie# “MR. think entitled to MOCK: ought put ruling, I think I in' tháí of the Court’s and don’t be ruling by saying you I spot if insist: on it of the Court give anything you will it to like that. now I motion-is
“THE COURT: don’t think that Well good. by deliberately put I
“MR. have been into that spot MOCK: something Mr. Sherrod is knows not admissible. error, I
“THE COURT: don’t think that it I don’t Well is any it, my opinion. there error at all in think is thing you “MR. MOCK: Well the for to do to overrule is motion then. ordinarily,
“THE COURT: That would be it immaterial true gave anybody not, as to whether a ticket or immaterial that’s proved by but Mr. Mock his own witness he told the officers entitled he was an hour miles think that he is to show that ... my
“MR. by way It MOCK: witness was of im- it peaching what the Defendant to. testified gotten
“THE If COURT: hadn’t there am sure . . . “MR SHERROD: It is the bit of evidence on that- will inbe the case.
“MR. e MOCK: ask that the . . . not the statement counsel or of the Court the statements of witness shown incirporated the statement of facts be in connection with this bill.” admitting testimony The action of the trial court in
overruling respondent’s mistrial, motion for followed prejudicial argument evidence, probably based such caused improper judgment light rendition anof In this case. court, unnecessary action object following argument: “. . . know it so We do looking regard- there who were at it at the time and regardless Leon, less of what told them what told the they gave officers when saw these skid marks ticket, they charged you offense, they with no were there for the purpose making investigating sole that and an arrest if there *10 violation, high- was a the skid marks were on side of the way, they (emphasis added) we were such know officers exceeding could not have been limit. Now trying being you? unreasonable? Am I to trick Am I unfair you? with I don’t so.” believe argument objected
Respondent petitioner’s attor- referring marks, ney he when the skid as follows: “But they said were six feet like Leon said officers also anything up prove.” were there wouldn’t been here to measured, only marks fact that the skid were not “looked at,” petitioner and the fact that counsel for his (who testify) said did not would have thing” testified, i.e., to the “same that Goforth testified driving only hour; per car 15 miles that the skid his about opin- length, and, further, 6 feet in in the marks officers, law, all ion violated no traffic re- quire a case. reversal Appeals of the Court be af- of Civil should
firmed. 30,
Opinion delivered June 1954.
Rehearing 6, overruled October 1954. Jay
Euel D. Harrison al v. M. al V. et et July 7, A-4486. 1954. No. Decided Rehearing overruled October (271 388) S.W. 2d Series