Lead Opinion
OPINION
C.J. Warrilow, a designated representative of certain insurance underwriters at Lloyd’s of London (hereinafter referred to as “Warrilow”), appeals from a judgment of $10,963,066.53 awarded to the heirs of Carlton Norrell, appellees, for damages resulting from Warrilow’s alleged breach of good faith and fair dealing to its insured, William Kerr. Warrilow further appeals from the award of $8,080.48 for attorney’s fees allegedly incurred by appellee, William Kerr. By twenty-five points of error, appellant Warrilow complains of the trial court’s judgment. Having found error, we reverse the judgment of the trial court and remand this cause for a new trial.
This suit arose out of a tragic accident. On November 11, 1983, Carlton Norrell was accidentally shot when his friend, William Kerr, dropped a loaded pistol. The three “hunting buddies,” Norrell, Kerr, and Wolfe, went deer hunting in Colorado. Upon their arrival, the men rented from Richard Lee, a local hunter and resident of the area, a four-wheel drive vehicle to transport them to and from the hunting fields. Wolfe shot his deer on day five of the hunt. On the last day of the hunt, Norrell shot his deer and secured it to the vehicle; Kerr had not yet shot a deer. That afternoon, the men decided to leave the hunting fields and drive back to Lee’s place to return the rented vehicle. According to Kerr, Norrell told him to keep his holster and gun, a 41 magnum pistol, on his hip in case they saw a deer while driving back to Lee’s. On the way, the vehicle’s left rear tire went flat. Norrell pulled to the side of the road, exited the vehicle, kneeled down, and started removing the lug nuts. Wolfe looked for a jack. Kerr, intending to assist in changing the tire, removed his fully loaded pistol from his belt to place it in the vehicle. Kerr dropped his pistol, and it discharged, shooting Norrell; the bullet entered Norrell’s left temple and exited through his right eye. Within a matter of seconds, Michael McLain, a Colorado wildlife field officer, was on the scene. Norrell was transported by ambulance to a hospital and, on November 18, after a week in the hospital, died of his injuries.
Kerr was a member of the National Rifle Association (“NRA”), аnd as such, was covered under a master policy of insurance, the “Peacemaker” policy. The policy was underwritten by the C.J. Warrilow syndicate, appellant. On February 2,1984, War-rilow sent a letter denying coverage to Kerr, this being the first of three separate denials.
The “Peacemaker” policy provided coverage for:
(a) bodily injury, or
(b) property damage caused by an occurrence and rising [sic] out of the use by*518 the Individual Insured Member of firearms, bows and arrows or trapping equipment, but only while engaged in the following activities:
(i) Hunting or trapping on public or private land.
The policy excluded:
(k) Bodily Injury or Property Damage arising out of the ownership, maintenance, operations, use, loading or unloading of:
... (ii) Any automobiles.
Warrilow, after receiving a report from a licensed insurance adjuster, James Fleming, denied coverage on the basis that the accident did not occur while Kerr was engaged in hunting, or alternatively, that it was excluded because it arose out of the maintenance or loading of an automobile.
On April 17, 1984, the Norrells brought suit against Sturm, Ruger & Company, the manufacturer of Kerr’s pistol, claiming the company designed and marketed a dangerously flawed gun that discharges when dropped. Sturm, Ruger thereafter made Kerr a third-party defendant, seeking contribution from him. Foremost Insurance Company, the issuer of Kerr’s homeowner’s policy, found coverage under their policy and hired attorney Allan King to represent Kerr. The suit was settled. The Foremost policy limits of $50,000 were tendered to Sturm, Ruger on behalf of Kerr as contribution to a $1,500,000 settlement between Sturm, Ruger and the Norrells. The record reflects, generally, that part of this $50,000 was paid to Allan King in satisfaction of his attorney’s fees.
On November 15, 1985, the Norrells filed suit against Kerr directly. The evidence of negligence on Kerr’s part was substantial. Prior to the accident, he knowingly failed to take advantage of a free program offered by Sturm, Ruger to correct the defect in the pistol. Moreover, he failed to use a basic safety practice of keeping an empty chamber under the pistol’s hammer, thus preventing an accidental firing. Once again, attorney Allan King represented Kerr. On June 17, 1986, Kerr, following the advice of counsel, consented to the entry of an agreed judgment against him and in favor of the Norrells for $2,900,000. On June 30, 1986, Allan King negotiated with the Norrells, and the parties entered into an “Equitable Assignment and Covenant Not to Execute” (hereinafter “assignment”), whereby the Norrells agreed that execution of the $2,900,000 judgment would not be taken, in return for Kerr’s claims and causes of action against both the NRA and Warrilow. The Norrells obtained the right to prosecute any causes of action in the name of Kerr only or jointly in the name of Kerr and the Norrells. The record reflects that the assignment recites coverage of up to $1,000,000 under the “Peacemaker” policy. From the documents before us, there is evidence to show that, at the time the assignment took place, both parties erroneously thought the “Peacemaker” policy limit was either $700,-000 or $1,000,000, while in reality, the limit was $100,000.
This appeal arises from the Norrells’ subsequent suit against the NRA, Warrilow, and Kerr.
By its twenty-first point of error, Warri-low contends that the trial court erred when it failed to disqualify Kerr’s attorney, Allan King. We agree. Warrilow filed a motion to disqualify counsel in which it asserted two separate grounds for disqualification of King: (1) he was a material fact witness in the case, and (2) he was designated by the plaintiffs as an expert witness in the case. These grounds were reasserted during trial, at which time Warrilow moved for a mistrial. The motion to disqualify and the motion for mistrial were overruled by the triаl court.
Disciplinary Rule 5-102(A) provides:
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4) (emphasis added).3
Disciplinary Rule 5-101(B)(l) through (4) provides:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular ease.
Supreme Court of Texas, Rules Governing the State Bar of Texas, Art. X, § 9 (Vernon 1988).
The rules governing the State Bar of Texas have the same force and legal effect upon the matters to which they relate as the Texas Rules of Civil Procedure have upon the matters to which they relate. Cochran v. Cochran,
Attorney King’s testimony as a material fact witness.
Because attorney King was called to testify on behalf of his client, Kerr,
The fourth exception, authorizing continued representation if an attorney’s withdrawal “would work a substantial hardship on the client because of the distinctive value of the lawyer ... as counsel in the particular case,” likewise has no application. This exception generally contemplates an attorney who has some expertise in a specialized area of law such as patents, and the burden is on the attorney seeking to continue representation to prove distinctiveness. Supreme Beef Processors, Inc. v. American Consumer Industries, Inc.,
We find that the trial court abused its discretion by failing to disqualify attorney King, as mandated by DR 5-102(A). However, in order to warrant reversal on appeal, rather than on mandamus, the complaining party asserting that the trial court should have disqualified an attorney pursuant to the attorney-witness rule must show that the violation harmed him or caused an improper judgment to be rendered. Bullock v. Kehoe,
Attorney King’s testifying on behalf of the plaintiffs as an expert witness presents a fact situation unprecedented in Texas. While the Disciplinary Rules clearly anticipated the situation where an attorney might testify as a material fact witness, the Rules do not specifically address the problems associated with an attorney allowing himself to be designated as an expert witness and subsequently offering testimony on the ultimate legal issues in the case.
Clearly, DR 5-102(A) is applicable because King was designated as an expert witness and called to testify on behalf of the plaintiffs. Unable to locate Texas legal authority addressing this issue, we turn for authority to a case from a United States District Court in Colorado where an attorney was designated as an expert witness, under surprisingly similar circumstances as the case at bar. In Federal Deposit Insurance Corporation v. Sierra Resources, Inc.,
The ultimate issues in the case before us follow:
(1) whether the accident was covered under the “Peacemaker” policy, i.e., whether Kerr was “hunting”:
(2) whether the accident was excluded under the “Peacemaker” policy, i.e., whether the accident arose out of the maintenance or loading of the automobile;
(3) whether Warrilow, by denying coverage under the policy, intentionally breached its duty of good faith and fair dealing to its insured, William Kerr;
(4) whether Warrilow’s conduct constituted a conscious disregard for the rights and welfare of its insured, William Kerr;
*522 (5) whether the $2,900,000 agreed judgment was reasonable under the circumstances;
(6) what sum of money, if any, would be appropriate to set an example for the good of the public and to deter the commission of similar alleged wrongs of Warrilow.
Attorney King testified, based upon his experience as a hunter and a former insurance claims adjuster, as follows:
(1) “It is my opinion at the time the incidents occurred, Mr. Kerr was in the act of hunting. * * * That there was coverage without question under the Peacemaker policy....”
(2) “It is my opinion that the incident did not arise out of the maintenance of the Toyota Landcruiser. * * * It is my opinion that the accident did not arise out of the automobile at all.”
(3) In response to the following question by plaintiffs’ counsel, “Let me ask you if you have an opinion whether or not Lloyd’s [Warrilow] intentionally refused to deal with Mr. Kerr fairly and in good faith in the entire claims handling of this matter? [sic], ” attorney King responded, “There’s no doubt that they did.”
(4) “I think the correspondence that went between the claims agents and Lloyd’s [Warrilow], compared to what they were telling their adjuster in the field, and telling that adjuster to transmit to Mr. Kerr, indicates that they were consciously indifferent to Mr. Kerr’s rights, and that they were— that constitutes gross negligence.”
(5) “That that [sic] [the $2,900,000 agreed judgment] was a reasonable amount.”
(6) “Given the size of the organization’s monitary [sic] — financial size of the organization, the only way to get its attention is by assessing some penalty against them in the form of dollars, and that’s got to be high dollars, not something minimal. * * * In this case it will take millions of dollars to get their attention.”
It would have been extremely difficult for the jury to separate what attorney King said as an advocate from what he said as an expert witness. To illustrate these difficulties, we need only turn to his own words when testifying in front of the jury, “My response, Your Honor, is that — it’s difficult to separate my response as a lawyer here on behalf of Mr. Kerr, and my testimony, because I think they’re one and the same.” When рlaintiffs’ counsel passed him as a witness, attorney King stated, again from the witness stand, “I don’t have any questions for myself, Your Honor.” Finally, during cross-examination when defense counsel moved to admit a document, attorney King stated, from the witness stand, “I have no objection.” Compounding the problem of jury confusion is the fact that attorney King participated actively throughout the trial: examining witnesses, addressing the court, and arguing to the jury. Cf. Callen v. Gill,
Another problem associated with this type of testimony is the attorney-witness vouching for his own credibility when summing up to the jury; it is unfair to opposing counsel. Jones v. City of Chicago,
An additional consideration justifying the prohibition occurs when the trier of fact,
A party is prejudiced when opposing counsel acts as both advocate and witness, and this conduct becomes intolerable when the attorney-witness fails to show that he has attempted to contact others who might act as an expert witness and found them lacking in knowledge of the relevant area of insurance. See Security General Life Insurance v. Superior Court,
The rule of disqualification involves a balancing of the likelihood of public suspicion against the interest in retaining counsel of one’s choice. Cossette v. County Style Donuts, Inc.,
To put things in perspective, the statement of facts shows that the presentation of the testimony of the plaintiffs’ seven witnesses covers approximately 1090 pages. Attorney King’s testimony alone comprises approximately 341 pages, nearly one third of all the testimony adduced in the presentation of the plaintiffs’ case. As we pointed out when discussing attorney King’s testimony as a material fact witness, the failure of the trial court to disqualify attorney King and the fаilure of the trial court to grant Warrilow’s motion for mistrial must have caused an improper judgment to be rendered, thus requiring us to reverse (Bullock,
“The practice of attorneys furnishing from their own lips and on their own oaths the controlling testimony for their client is one not to be condoned by judicial silence * * * nothing short of actual corruption can more surely discredit the profession.” Ferraro v. Taylor,
When the trial court’s judgment must be reversed, it is the duty of this Court to render the proper judgment, except when it is necessary to remand for further proceedings. Tex.R.App.P. 81(c). Consequently, we must address Warrilow’s points of error which could result in our reversing and rendering judgment in this case. The appropriate points of error for our inquiry are those that complain of the absence of legally sufficient evidence on vital jury findings. See Yarbrough v. Booker,
By points of error one and two, Warrilow contends that the evidence was legally insufficient to establish the accident as a covered loss under the “Peacemaker” policy, i.e., Warrilow contends that, as a matter of law, Kerr was not engaged in hunting. Likewise, by points of error three and four, Warrilow asserts that the evidence was legally insufficient to show that the accident was not excluded under the “Peacemaker” policy, i.e., Warrilow contends that, as a matter of law, Kerr was maintaining or loading the vehicle. Finally, by point of error eight, Warrilow claims that the plaintiffs failed to meet their burden of proof, essentially arguing that the plaintiffs failed to obtain necessary fact findings on the above issues.
Coverage under the “Peacemaker” policy.
As the trier of fact, the jury found that the accident occurrеd while Kerr was “engaged in hunting.” The policy does not contain a definition of “hunting.” Both parties argue that the term “hunting” has a plain and generally accepted meaning, but they are at opposite poles as to what that meaning is. Cf. Standard Fire Insurance Co. v. Griggs,
The plaintiffs contend that “hunting” includes travel to and from the hunting fields, while Warrilow contends that “hunting” is limited to the actual pursuit of game. We have concluded that both parties have offered reasonable, although conflicting, interpretations of the meaning of “hunting” as applied to the facts and circumstances of this case. The term is not ambiguous, in and of itself, but uncertainty arises when the term is applied to the facts of the case. See Ramsay v. Maryland American General Insurance Company,
The jury found that the accident was not excluded from coverage under the “Peacemaker” policy — that the accident did not arise out of the maintenance or loading of the vehicle. Warrilow asserts that the accident arose out of the maintenance (changing a tire) and the loading of the vehicle (Kerr’s intent to place his pistol in the vehicle after removing it from his hip). On the other hand, the plaintiffs claim that the accident arose out of Kerr’s negligence
Warrilow cites two Texas eases for the proposition that injuries which would not have occurred “but for” an excluded activity, “arise out of” the excluded activity. In Dorsey v. Fidelity Union Casualty Co., 52 S.W.2d 775 (Tex.Civ.App.—Waco 1932, writ dism’d by agr.), the insured was injured when his companion, before entering an automobile and for the purpose of preparing his gun to be loaded into а car, undertook to remove the shells therefrom, and in his doing so, the gun accidentally discharged, shooting the insured. The policy insured against injuries sustained as the result of operating or riding in a car. The court held that the removing of the shells was so closely connected with the loading into the car as to constitute a part thereof. Thus, no negligence apart from the loading of the car was shown; there was no claim of multiple causation. Moreover, the court was interpreting the coverage section of the policy, expressly following the rule that policies are construed against the insurance company.
Likewise, in Travelers Insurance Co. v. Employers Casualty Co.,
Warrilow urges us to apply the law of these cases to the facts at hand. We cannot. It is important to recognize different rules of construction governing the interpretation of policy provisions which extend coverage as opposed to policy provisions which exclude coverage. When a case involves an exception or limitation to an insurer’s liability under a policy, a more stringent construction against the insurer is required than a case involving a coverage provision. Barnett,
The leading case involving concurrent causation and construction of an exclusionary provision of a liability insurance policy is State Farm Mutual Insurance Co. v.
Other courts have adopted this rationale in finding coverage for similar accidents. In Travelers Insurance Co. v. Aetna Casualty and Surety Co.,
In Glen Falls Insurance Co. v. Rich,
Finally, in State Capital Insurance v. Nationwide Mutual Insurance,
Applying these principles to the present case, Kerr’s liability could be based on a finding that both the negligent failure to have the defective gun repaired and the negligent failure to keep an empty chamber under the hammer were the proximate causes of Carlton Norrell’s death. Kerr’s choice of placing his pistol in the vehicle was mere happenstance; he could have easily set it down in any number of places. We decline to hold that the accident was excluded under the policy because, as War-rilow urges, it arose out of the loading of the vehicle. With respect to Warrilow’s assertion that the accident arose out of the maintenance of the vehicle, we reach the same conclusion for the same reasons. The changing of a tire was mere happenstance. Cf. Queen Insurance Co. of America v. Creacy,
Warrilow’s third, fourth and eighth points of error are overruled. The judgment of the trial court is REVERSED, and this cause is REMANDED for a new trial.
Notes
. This fact raises the possibility that the "Covenant Not to Execute" is voidable on the ground of mutual mistake.
. Although Kerr was a named defendant in the suit, the trial court realigned the parties, treating Kerr as a plaintiff. After reviewing the entire record, it is clear that Kerr was properly placed as a plaintiff during trial, and this Court will refer to Kerr as one of the plaintiffs, accordingly.
. DR 5-102(B) states:
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client (emphasis added).
We need not determine whether attorney King’s testimony was prejudicial to his client; Warri-low’s complaint arises from the plaintiffs’ calling of attorney King as a witness to testify on behalf of his client (Kerr), not Warrilow’s calling of attorney King as a witness to testify on behalf of Wаrrilow (Kerr’s adversary) as contemplated by DR 5-102(B). See Gilbert McClure Enterprises v. Burnett,
. There appears to be at least two reasons why attorney King’s testimony is given on behalf of his client: (1) by the terms of the "Equitable Assignment and Covenant Not to Execute,” Kerr obligated himself to "fully cooperate with counsel ... in the prosecution of such litigation [this suit],” and (2) the potential for rescission of the "Equitable Assignment and Covenant Not to Ex
. In a Stowers case, where an attorney might be a witness to a settlement offer and facts bearing upon an alleged negligent refusal to settle, it is unethical for him to accept employment in the case. State Bar of Texas, Comm, on Interpretation of the Canons of Ethics, Op. 308 (Nov. 1965).
. Although Texas courts have enumerated several reasons for the disqualification of a testifying attorney, the following рolicy reasons have been exclusively applied to situations where the attorney testifies as a material fact witness: (1) the attorney may be more impeachable for interest and, therefore, a less effective witness; (2) the attorney’s role as an advocate may handicap the opposing counsel in challenging the credibility of the testifying advocate; (3) it may place the testifying advocate in the unseemly and ineffective position of arguing his own credibility; and (4) the roles of advocate and witness are inconsistent, because the function of an advocate is to advance his client’s cause and that of a witness is to state facts objectively. Bert Wheeler’s, Inc. v. Ruffino,
. Clearly, that is the rationale behind Disciplinary Rule 5-102(B)’s requirement that the mov-ant make a showing that the testimony of the attorney may prejudice the testifying attorney's client. Disqualification under DR 5-102(B) is more stringent than disqualification under DR 5-102(A) because a litigant may call his or her opponent’s attorney as a trial tactic, seeking to disqualify the attorney from the case. Jones v. City of Chicago,
. Indeed, the plaintiffs called Mr. Richard Swanter to testify as an expert witness regarding insurance industry procedures, making it abundantly clear that adequate expert testimony was available.
. The remedy for violation of the witness-advocate rule is reversal and remand for a new trial. See generally Cheatham v. Franke,
.When trial counsel foresees the possibility that he will testify on behalf of his client at trial, he should resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel. Comden v. Superior Court,
. January 1, 1990, the new Texas Disciplinary Rules of Professional Conduct become effective. Although our decision today is based upon an application of the current Texas Code of Professional Responsibility — Disciplinary Rule 5-102(A), we would have reached the same result under the new Disciplinary Rule 3.08(a) because the standard of conduct for a lawyer testifying on behalf of his client has not been materially altered by the new rule.
. It is undisputed that Kerr knowingly failed to take advantage of a free program offered by Sturm, Ruger to correct the defect in the pistol and that he failed to use a' basic safety practice of keeping an empty chamber under the pistol’s hammer.
Lead Opinion
OPINION ON MOTION FOR REHEARING
On its motion for rehearing, appellant Warrilow contends that established Texas law does not permit our adoption of the concurrent causation doctrine of Partridge. We disagree. Warrilow cites three Texas cases in support of its argument.
Partridge did not involve first-party property insurance coverage; it involved third-party liability insurance coverage.
The Distinction Between Liability and Property Insurance
Warrilow fails to differentiate between property loss coverage under a first-party insurance policy, typically an all-risk homeowner’s policy, and tort liability coverage under a third-party insurance policy, as the Peacemaker policy in the present case. This distinction is critical. The California Supreme Court recently elaborated on its Partridge rationale, “Liability and corresponding coverage under a third-party insurance policy must be carefully distinguished from the coverage analysis applied in a first-party property contract. Property insurance, unlike liability insurance, is unconcerned with establishing negligence or otherwise assessing tort liability.” Garvey v. State Farm Fire and Casualty Co.,
Coverage in a property policy is commonly provided by reference to causation, such as “loss caused by ...” certain enumerated forces. Garvey, 257 CahRptr. at 298,
The Partridge rationale is not proper in the first-party property insurance context because, in most cases, the insured can point to some arguably covered contributing factor. Garvey,
The cases cited to us by Warrilow involve disputes over first-party property insurance coverage. In the case at bar, the dispute is over third-party liability insurance coverage. We believe the distinction is necessary and appropriate. Both appellant’s and appellees’ motions for rehearing are OVERRULED.
NYE, C.J., concurs.
. Travelers Indemnity Co. v. McKillip,
. In first-party insurance coverage, the insured is covered for his own loss. In third-party insurance coverage, the insured is covered for his liability to another for their loss.
Concurrence Opinion
concurring.
I respectfully concur in the result reached by the majority. I agree with the majority’s position that attorney Allen King’s conduct is reprehensible; however, I would not reverse and remand the case for that reason. I would, however, reverse and remand this ease relying on appellant’s second point of error, i.e., that the evidence is factually insufficient to show that William Kerr’s claim was covered under the subject insurance policy.
Special Issue Question No. 1 аsked, “Was the accident in question a covered loss and not excluded under the 1983 policy?” The jury answered in the affirmative. The majority upheld the jury’s finding on these two issues. Before a court of appeals can set aside a jury’s determination of fact, it must consider and weigh all the evidence supporting and contrary to the jury’s determination. Sosa v. City of Batch Springs,
The “NATIONAL RIFLE ASSOCIATION MASTER INSURANCE POLICY” providing Kerr’s coverage stated, in relevant part:
II. COVERAGE. The underwriters will pay on behalf of the Individual Insured Member all sums which the Individual Insured Member shall become legally obligated to pay as damages, all as hereinafter defined as included within the terms, “ultimate net loss”, excess1 over and above any other valid and collectible insurance, because of (a) bodily injury,
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caused by an occurrence and rising out of the use by the Individual Insured Member of firearms, ... but only while engaged in the following activities:
(i) Hunting or trapping on public or private land.
Michael Holland, the designated representative of the C.J. Warrilow syndicate, testified that in his opinion, intent is a major consideration in determining whether a person is hunting. He also said that the person alleged to be hunting is in the best position to say whether or not he was actually hunting.
On the day of the incident, Kerr (the person who dropped the pistol) gave a statement to Officer Chaffin. Kerr stated, “[W]e just decided that this being the last day of this season, we’d give it up and go on home_just quit for the ... year_ [W]e got into the Jeep and started home.” During trial, Kerr testified that their hunt would have continued until their arrival at Lee’s; however, he also said that while leaving the hunting fields, they got on a road and drove four or five miles to a gate. Once they passed through this gate, and continued to Lee’s place, permission to hunt would be required. Kerr did not have permission to hunt in this area and would not have shot anything without it. The incident occurred after all of the men had passed through this gate. Kerr admitted that at the time of the incident, he was not looking for something to shoot; rather, he was concentrating on placing his pistol inside the vehicle and changing the tire.
Michael McLain, a field officer with the Colorado Division of Wildlife, arrived at the scene within minutes of the incident. Kerr told McLain the details of the incident. McLain testified that there was no indication of hunting. McLain also filled out an accident report. The report asked whether the victim (Norrell) was hunting. Officer McLain indicated that he was not. McLain based his answer on his discussions with Kerr and Wolfe. He also based his answer on the fact that the incident occurred on a paved road surrounded by private property. McLain testified that they would have needed permission to hunt on the adjoining private property.
The pertinent language in the policy indicates that Kerr enjoyed coverage “only while engaged in” hunting. Our Legislature has said that “hunt” “includes take, kill, pursue, trap, and the attempt to take, kill, or trap.” Tex.Parks & Wild.Code Ann. § 61.005(1) (Vernon 1976). In the instant case, all of the circumstances indicate that prior to and during the incidеnt, actual hunting had ceased and the men were now on a different mission, i.e., returning the rented vehicle to Mr. Lee. Having examined all of the evidence, I would conclude that the greater weight and preponderance of all the credible evidence is that William Kerr was not engaged in hunting at the time of the incident. I would grant a new trial on this issue.
The majority sustained point of error twenty-one and held that the trial court abused its discretion “by failing to order his [attorney King’s] withdrawal and by failing to grant Warrilow’s motion for mistrial when the nature of attorney King’s testimony [as an expert witness] became apparent.” There is no question that King violated the ethical provisions of Disciplinary Rule 5-102[A] and the exceptions stated in Disciplinary Rule 5-101[B][l]-[4]. See Tex.Gov’t Code Ann. Title II, Subtitle G (Vernon 1988).
I do not believe, however, that King’s conduct warrants reversal of the trial court’s judgment. Professor John F. Sutton, Jr., in his article The Testifying Advocate, 41 Texas L.Rev. 477 (1963), stated, relevant to this discussion, that:
The advocate’s interest — occasioned by his fee or merely by an advocate’s partisan instinct — in seeing his client prevail lessens, not strengthens, his credibility and the weight of his testimony. Whenever a lawyer’s testimony is given unusual weight by a particular jury or judge, the lawyer’s demeanor and his standing in the community and similar factors are likely responsible. The circumstance that he is both advocate and witness does not itself enhance his standing as a witness or make his advocacy more appealing. The appearance of a particular lawyer as either a witness or an advocate may be influential with judge and jury, by reason of reputation or personal magnetism, but it is difficult to see how the fact that he simultaneously appears as both could increase his influence on the trier of fact, [footnote omitted]
Apparently, the majority fears that King, by acting as both witness and advocate, somehow enhanced his standing as a witness, and by reversing the judgment on this point, they obviously assume that the jury lacked the intelligence to consider and weigh the effect of King’s interest in the case. An interested witness’ testimony need not be prohibited, because a jury can and will weigh the effect of the interest. Seaboalt v. Vandaveer,
Furthermore, the testifying advocate is more easily impeachable because of the interest he may have as an advocate in the outcome of his client’s case. In Wilson v. Wilson,
In any given case, the trier of facts may be justified in giving little weight to a witness-advocate’s testimony. Many factors affect the weight of a witness’ testimony, however, and the question of weight of evidence usually is best left to the trier of facts. Seaboalt,
I would not hold that the trial court abused its discretion in failing to order attorney King’s withdrawal and/or by not granting Warrilow’s motion for mistrial when the nature of attorney King’s testimony became apparent.
I would reverse the trial court’s judgment and remand the case for a new trial as set out in its premises.
. Emphasis in original.
. See also Tex.Gov't Code Ann. Title II, Subtitle G, Rules 1.15 and Rule 3.08 (Vernon Supp. 1990).
. Our Supreme Court and Court of Criminal Appeals recently adopted "The Texas Lawyer's Creed — A Mandate for Professionalism" in response to the growing practice of abuse of the legal system. These courts urge our profession to rededicate itself to the practice of law "so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system." The considerable lack of ethical judgment presented in other cases as well as this one indicates that this creed appears at a most auspicious time. See Millhouse v. Wiesenthal,