49 S.W.2d 986 | Tex. App. | 1932
The case was submitted on special issues, in response to which the jury found, in substance, that:
(a) Mrs. Dyer, on the date alleged, entered appellant's store for the purpose of making a purchase. The floor thereof was slick and slippery, which condition caused her to fall. Appellant was negligent in permitting its floor to be in such condition, and such negligence was the proximate cause of the injuries suffered by her. She sustained damages as the direct and proximate result of such negligence in the sum of $3,800.
(b) Appellant failed to exercise ordinary care in the maintenance of its floor at that time, and it knew, or could by the exercise of ordinary care have known, that its floor was in such condition.
(c) Mrs. Dyer could not have avoided such fall by the exercise of ordinary care and *987 diligence, and her injuries were neither proximately caused nor contributed to by any failure on her part to exercise such care.
The court rendered judgment on the verdict and findings of the jury in favor of appellees against appellant for the sum of $3,800, with interest from date and costs of suit. Appellant presented a motion for new trial, which was heard and overruled.
Appellant owed Mrs. Dyer, a customer in its store, upon implied invitation to inspect and purchase its wares, the duty to maintain the floor thereof in a reasonably safe condition for walking to and fro thereon. Any dangerous condition of such floor arising from the manner in which it was maintained by appellant or its employees to whom such maintenance was intrusted was a breach by it of such duty. Blake v. Great Atlantic Pacific Tea Co.,
Appellant presents assignments of error in which it contends that the court erred in not, at its request, discharging the jury, and entering an order declaring a mistrial because its witness, Dr. Collins, stated in his testimony on cross-examination that he sent a report of the result of his examination of Mrs. Dyer to the Maryland Casualty Company, and in overruling its motion for new trial so far as the same was based on such ground. The clerk's transcript contains no written motion for the discharge of the jury and the entry of an order of mistrial and no order or judgment of the court denying the same. Neither does it contain any bill of exception evidencing such request and refusal and incorporating the same in the record. Appellant's request and the failure of the court to grant the same is shown only in the stenographer's transcript of the evidence, which was filed and approved as the statement of facts in this appeal. Whether appellant's complaint is properly presented for review we will not pause to determine. The statement of facts shows that appellant placed its witness, Dr. Collins, on the stand and proved by him that he had made what he termed an X-ray examination of Mrs. Dyer a short time prior to the trial. Based on said examination, he gave material testimony in rebuttal of appellees' contention that Mrs. Dyer's disability existing at that time resulted from injuries sustained in her fall. Whether such examination was made by the witness at the instance or request of appellees or some other person was not shown. Mr. Hamilton, one of appellees' attorneys, in cross-examining said witness, asked the following questions, to which the witness made replies as indicated:
"Q. Who paid for that report you have got there, Doctor? A. Nobody.
"Q. Who is to pay? A. I hope I am going to get it from — she was referred to me by Dr. Dudgeon, report was made out by me and I think a copy of it was made out to the Maryland Casualty Company."
Mr. Porter, one of appellant's attorneys, who had taken a leading part in conducting its defense, interrupted the examination, and, apparently in the presence and hearing of the jury, addressed the court as follows: "May it please the court, in this connection we had no idea of just what this would lead to, and at this time we would ask the court now for a mistrial of this case. The developments have been such as to render it practically impossible to proceed with the trial of the case and we would like to ask for a mistrial right now." The court thereupon retired the jury, whereupon Mr. Porter further stated to the court that he was directly representing the Maryland Casualty Company and had tried to avoid any reference to it in the trial of the case; that he felt the interests of the defendant had been seriously prejudiced by the statement of the witness, and that a continuance of the trial would be a hardship upon it regardless of any instruction that the court might give to the jury, and that nothing short of a mistrial would serve the ends of justice. A general discussion was then had, in which counsel for appellant intimated or charged that the issue of casualty insurance had been intentionally injected into the case, and Mr. Hamilton denied any such intention or purpose and insisted that the question asked was proper to show the interest or bias of the witness, and that his reply thereto was unexpected and not responsive. The court then announced, in substance, that he would withhold his ruling and would consider the matter further on motion for new trial. Mr. Porter merely said, "We note an exception." The court, in submitting the case to the jury, instructed them not to discuss nor consider whether appellant might or might not carry insurance, nor whether appellees might or might not have to pay any part of the judgment, in event they recovered one, to their attorneys as fees for representing them in the case. Neither party presented any objection to the court's charge. Appellant in its motion for new trial charged that the issue of casualty insurance was deliberately and intentionally injected into the case, and alleged the existence of certain facts which it claimed tended to sustain such charge. Its motion was not verified. Neither is there any testimony showing or tending to show that appellant in fact carried such insurance with the Maryland Casualty Company, or any other company. Appellees filed a reply to appellant's motion for new trial, in which they alleged, in substance, that, if the answer of the witness Collins as before set out indicated that appellant carried such insurance, which was not admitted, such reply was accidentally and unintentionally elicited. Said reply was duly verified by Mr. Hamilton. The court heard said motion and overruled the same. Such action necessarily implied a finding in favor of appellees on the issue of fact so raised.
The right to require an adverse witness to disclose on cross-examination any facts which tend to show interest or bias on his *989
part is well established and is deemed valuable. His relation to the party in whose favor he is testifying and the circumstances under which he acquired knowledge of the facts related may be material in such an inquiry. We quote on this issue from 28 R.C.L., p. 607, § 197, as follows: "The fullest inquiry must be allowed into collateral matters, whether they have been the subject of direct examination or not. In fact, this line of inquiry is one of the most important purposes of cross examination and is the principal factor in establishing cross examination as one of the chief agencies for the development of the truth in judicial inquiries. By means thereof the relation of the witness to the cause or the parties, his bias or interest, if he has any * * * indeed, any collateral fact which may bear on his truthfulness and impartiality, may be brought to light." See, also, San Angelo Water, Light Power Co. v. Baugh (Tex.Civ.App.)
Appellant presents a group of assignments in which it contends that the damages awarded appellees by the jury are grossly excessive and show conclusively that the jury were influenced by passion and prejudice in making such award. Mrs. Dyer was injured in July, 1930. She was in her fifty-sixth year at the time. Prior to her fall she was in reasonably good health and had since her marriage some twenty years before done all her own housework, cooking, washing, ironing, and scrubbing. She was strong enough when so inclined to mow the lawn and do other hard labor. The immediate effect of her fall was severe pain in the shoulder, leg, and ankle, attended with swelling and marked discoloration. She was in bed practically all the time for three weeks and most of the time thereafter for three months. The trial was had in August, 1931. She at that time still suffered from severe pains in the hand, shoulder, arm, knee, and ankle on the injured side. She was unable to lie on that side at night on account of the pain caused by doing so. Her ankle was frequently swollen, and that leg was then smaller than the other. She at that time was still unable to do her own housework and had to have hired help at times and the active assistance of her husband all the time in performing the usual household tasks. The strength of arm and leg was greatly impaired. She could not lift any substantial weight nor stand or walk for even a short length of time without becoming lame. She was nervous and unable to sleep except under the influence of a sedative. She was corroborated with reference to the matters above recited by her husband and several of her neighbors. She had been continuously under the treatment of her physician ever since her injury. He examined her a day or two after she sustained such injuries. While he found no fractures, he found her seriously bruised on arm, shoulder, and leg. There was an injury to the nerve which supplies the arm and shoulder. About three months after the injury a callous formed in the shoulder, which produced continual pressure on the nerves. He corroborated Mrs. Dyer with reference to the condition at the time of trial of her arm, shoulder, leg and ankle. He testified that such condition would be permanent, and that the same resulted from her fall. Appellant introduced the testimony of two physicians who had examined her shortly before the trial. They testified that in their opinion the condition of Mrs. Dyer's arm, shoulder, leg, and ankle was due to infection, arthritis, and causes other than the fall. The amount of damages to be awarded in a particular case of personal injury is primarily a matter for the jury. It is therefore impossible to reconcile the verdicts in different cases or to measure them by a common standard. The jury in this case seems to have accepted appellees' theory of the case both as to the cause of her injuries and the extent of her suffering and disability therefrom, and we cannot say, in view of the evidence as a whole, that their doing so indicates that they were influenced by any improper motive. The amount awarded is within the range of precedents in similar cases. Texas
P. Ry. Co. v. Perkins (Tex.Civ.App.)
We have examined the other assignments of error presented by appellant in its brief and have reached the conclusion that none of them presents reversible error.
*991The judgment of the trial court is affirmed.