This is the second time this ease has been before this court. The opinion on the former appeal is reported in
The plaintiffs filed a supplemental petition denying these allegations in the defendant’s answer, and charging that at the time of the execution of the purported release, and the settlement therein mentioned, the said Edward MapKeehnie was of unsound mind, and unable to understand the purport or extent of said release, and the same was not binding upon him, and offered to return to the defendants the sums of money, if any, with legal interest, paid by them upon said purported settlement.
The case was submitted to a jury upon special issues, and judgment upon their finding rendered in favor of the plaintiff Ellen Mac-Kechnie in the sum of $13,781.92, which included principal, interest, and attorney’s fees, together with all costs. It was further adjudged that the plaintiff Stewart MaeKech-nie take nothing by the suit. Motion for a new trial having been overruled, the defendant, Western Indemnity Company, perfected an appeal.
The record shows, as is alleged in appel-lee’s petition, the issuance of the accident insurance policy sued on, and that said policy was in force on the 25th day of September, 1913; that Edward MacKechnie on that day, while attempting to catch a moving street ear with the view of boarding it, fell and accidentally broke one of his arms and bruised his forehead; that on the 15th day of October, 1913, 20 days after this accident, the said MacKechnie, in consideration of the sum of $142.15 paid to him by appellants, released them, in writing, from all claims under the policy issued to him “on account of and in full compromise settlement for injuries accidentally sustained on or about September 25, 1913.”
The court submitted to the jury the following issue:
“Was Edward MacKechnie at the time he executed the release, on October 15, 1913, possessed of sufficient mental capacity to know, understand, and appreciate the nature and effect and result of his act? Let your answer be the one word, ‘Yes’ or ‘No.’ ”
The appellant requested this instruction:
“You are instructed that the burden of proof is upon the plaintiffs to establish by a preponderance of the evidence that Edward Mac-Keehnie was mentally incapacitated at the very time he executed the release in evidence to know that he had done so, and, the plaintiffs having wholly failed to offer any testimony whatever tending to establish this fact, it therefore follows, as a matter of law, that said release cannot be set aside, and you are instructed to return a verdict for the defendants as follows: ‘We, the jury, find for the defendants.’ ”
The requested instruction was refused, and the court’s action in refusing it, and in submitting the issue quoted,- forms the basis of appellant’s first, second, and third assignments of error, which are presented together in the brief. The propositions here contended for by appellant are, in substance, (1) that there was no evidence that Edward Mac-Kechnie did not have sufficient mental capacity to understand the nature and effect of the release at the time he signed it, and, since it was not alleged that the release was executed by fraud, accident, or mistake, the peremptory instruction should have been given ; (2) that the issue submitted imposed upon the appellant a greater burden than required by law, in that it required the jury to find, in order to resolve the issue favorable to appellant, that MacKechnie not only had sufficient mental capacity to understand the nature of the release, but sufficient legal knowledge to construe the legal effect thereof ; (3) that the issue was too burdensome, in that it required the jury to find, before they would be authorized to answer the question “Yes,” that MacKechnie not only had sufficient mental capacity to know, but to understand *460 and appreciate, the nature and effect of his act, and further, the result of his act, whereas, if MacKechnie had sufficient mental capacity either to know or to understand or to appreciate the nature and effect of his act, the question should have been answered “Yes.”
The court did not err in refusing to give appellant’s said special charge. The charge instructed the jury, in effect, that the plain-riffs had wholly failed to introduce any testimony whatever tending to show that Edward MacKechnie was mentally incapacitated, at the time he executed the release in evidence, to understand the nature and effect thereof. With this view of the testimony we do not agree. The testimony bearing upon the issue ⅛ too lengthy to be quoted in this opinion. It has been carefully read and considered, and, in our opinion, it was of such character as to require the submission of the question to the jury for decision. This being true, it would have been positive error to have given the requested charge. The court was therefore right in refusing it, and in submitting the issue to the jury. But the record fails to disclose that appellant, either before or at the time of the submission of the issue, or in its motion for a new trial, contended that the evidence was insufficient to warrant its submission.
Assignments of error from 4 to 9, inclusive, are grouped. They complain of the court’s refusal to give certain special charges requested by appellant directing the jury to return a verdict in its favor because (1) the evidence shows that if Edward MacKechnie sustained any injury to his head he sustained it at a time, place and under circumstances not alleged in appellee’s petition; and (2) because the evidence failed to show that the death of the said Edward MacKechnie or the permanent paralysis or physical incapacity alleged to have been suffered by him resulted from the alleged accident directly, independently, and exclusively of all other causes. Complaint is also made in this group of assignments that the finding of the jury that the bodily injuries sustained by Edward Blac-Kechnie on or about September 25, 1913, were effected, directly and independently of all other causes, through accidental means, is contrary to and unsupported by the evidence. The petition alleged that Edward BlacKechnie, while attempting, at or near the corner of Commerce and Murphy streets, to board the car of a street railway, suffered a fall to the ground or pavement, upon or against the street car, and thereby sustained the injuries which were alleged to have been effected, directly and independently of all other causes, through accidental means. The testimony offered by appellees was sufficient to authorize a finding that it was at this time and place the injury to Blr. 'MacKech-nie’s-head, which appellees claim resulted in a paralytic stroke, permanent paralysis, and finally in his death, was received. The appellant introduced a witness, Robert Clark, whose testimony tended to show that Blr. BlacKechnie fell on the sidewalk in front of this witness’ saloon, which was located at the corner of Commerce and Blurphy streets, 20 or 30 minutes before the fall suffered by him while attempting to catch and board the street car, as alleged by appellee. This witness said that he heard of the accident which Blr. MacKechnie sustained on the street after his fall on the sidewalk in front of the saloon, and that he thought that after the first fall, and before the second one in the street, there was a little blood on Blr. MacKechnie’s fore *461 head right over the eye on the right side; that the extent of the injury seemed to be “a little bit of a scratch and a little bit of blood.” The injury to MacKechnie’s head at this time is not described as a bruise or contusion, nor is its description of such a character as to indicate that the head had come in contact with the sidewalk as the result of a fall of his body. There is no positive testimony that Mr. MacKechnie actually fell to the sidewalk at the time referred to by the witness, or if he did, that his head struck ^the pavement. That either of these things occurred is only an inference of the witness drawn from his observation of what he called a “giving down” of Mr. MacKechnie on his right side as he passed out ‘ of the saloon door. On the other hand, there is positive testimony of his falling and striking the side of his face and head against the hard pavement of the street. The witness Wesley Starke testified that he was riding down Commerce street west, on his bicycle, about 20 feet behind a street car going west, and just as the street car passed Murphy street a gentleman who was standing about 20 feet from the corner started out to get on the car, as it seemed, and raised his hand, but that just before he touched the car he fell; that he (the witness) at this time was about 15 feet from the man,-was on his bicycle, and stopped a couple of yards from him. This witness further said that the conductor on the street ear and others picked up the man that had fallen; that the side of the man’s face was covered with mud, and that it seemed to him that there was some blood, but that he was not positive whether he saw any blood on his face or not; that the first time he noticed the man was when he stepped from the curb to the street, raised his hand, and started toward the street car; that after-running two or three yards the man fell, but what caused him to fall he did not undertake to state. He further testified that he did not notice anything unusual or different about this man’s running from that of other men; that he was a very large man; that he was not close enough to him to smell Ms breath, and there was nothing to indicate that he was drunk. That this man was Edward MacKechnie is not disputed, and there is ample testimony to the effect that when he was picked up in the street he was practically unconscious, and had a contusion or bruised place over one of his eyes; that up to the very day of the accident in question he had the appearance of being in robust health, unusually bright mentally, well educated, with fine control of the English language, both in speech and writing; that he was in his office on the afternoon of the accident, and about one hour before it occurred; that it was a rainy afternoon; that one of his employers told him there was nothing he could do, and that he could go home if he so desired; that about one hour after he left the office this same employer received a message from the emergency hospital to the effect that Mr. MacKechnie was there and had been hurt; that he at once went to the hospital and found MacKechnie in a dazed condition; that at the time Mr. MacKechnie left the office there was apparently no change in him from what he had always been, physically and mentally; that he seemed in perfect health when he walked out of the office, about an hour before the accident.
The real issues in the case were whether Edward MacKechnie at the time he executed the release on October 15, 1913, was possessed of sufficient mental capacity to understand the nature and effect of such release, and whether the bodily injuries sustained by Edward MacKechnie, as alleged by appel-lees, were effected, directly and independently of all other causes, through accidental means, and immediately, continuously, and wholly disabled and prevented him from performing any and every kind of duty pertaining to his occupation, and resulted in permanent paralysis and his death, or whether the disease of arteriosclerosis or Bright’s disease or the use of alcoholic liquors caused, or contributed to cause, or concurred in causing, the bodily injury of the said MacKechnie which terminated in his death or permanent paralysis. These issues were submitted to the jury and determined favorably to ap-pellees.
“My opinion from my examination of him is that he had a lick or a fall or a blow on the head that produced this trouble in him. He is suffering with paralysis, and it is my opinion, from examination of him, that it will finally result in total paralysis, and will probably permanently disable him, because his trouble is progressing, owing to his enfeebled condition and advanced age. I think it will continue to grow worse. The cause of his paralysis I believe is from some injury of the head, as I have already stated.”
Dr. Wrather further said that he did not know, but that it was not improbable, that Mr. MacKechnie had some arteriosclerosis at his age, but that, so far as he was able to tell, he had no arteriosclerosis; that a slight abrasion on the forehead or eyebrow, without the skull being fractured, might produce concussion, and rupture a meningeal artery, and cause a blood clot on the brain, thereby causing insanity and paralysis. There is also testimony of physicians to the effect that Mr. MacKechnie was not afflicted with Bright’s disease, and had no more arteriosclerosis than an ordinary man of his age would have. But it is impracticable to quote or state all the evidence bearing on the issues here undergoing investigation.
“Did such bodily injuries, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent Edward MacKechnie from performing any and every kind of duty pertaining to his occupation, and result in his death? " Let your answer be the one word, ‘Yes’ or ‘No,’ according as you shall find.”
The appellant duly objected to the submission of the question on the ground, among others, that it was “a combination of two issues which the jury might answer definitely, and which the jury ought to be permitted to pass upon separately.” The two issues claimed to be submitted in the question were pointed out, but the objections were overruled and exceptions reserved. ■ The question was answered “Yes,” and appellant, by an appropriate assignment of error, asserts that the form of submitting the issues was prejudicial error. The proposition advanced is that the “issue was multifarious, and called for a finding of the jury upon two separate and distinct issues, which should have been submitted separately and distinctly.” We can see no escape from the conclusion that this contention is correct. Appel-lees sued to recover weekly indemnity of $25 for the term of 12 months from the date of the policy declared oh, in addition to the initial principal sum of $5,000 claimed on account of the death of Edward MacKechnie. Judgment, based upon the findings of the jury, was rendered in favor of appellee, Ellen MacKechnie, for both amounts so sought to be recovered. They were separate- and distinct issues depending for solution not necessarily upon the same facts or testimony. The first question submitted is, Did the bodily injuries sustained by Edward MacKechnie, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation? Upon an affirmative finding upon this issue depended appellee’s right to recover the weekly indemnity. The second question is, Did such injuries result in his death? And. upon an affirmative finding upon this issue depended appellee’s right to recover the initial principal sum of the policy. Under the evidence adduced both of these questions were questions of fact, both or either of which might have been answered in.
*463
the affirmative, o.v both or either of which might have been answered in the negative. As submitted, the jury was required to answer both in the affirmative or both in the negative. The privilege of answering one in the negative and the other -in the affirmative, or vice versa, was not allowed the jury. They were instructed to answer by the “one word, ‘Yes’ or ‘No.’ ” It has been expressly held in this state that a special issue of fact submitted to a jury for their determination, to which the jury are instructed to answer “Yes” or “No,” should submit for their consideration a.single question, and should not combine two separate and distinct questions of fact, one of which might be answered in the negative and the other in the affirmative, or vice versa, by the jury. Railway Co. v. Turner,
“Have the plaintiffs shown by a preponderance of the evidence that neither the use of alcoholic liquors nor the disease of arteriosclerosis or Bright’s disease taused, or contributed to cause, or concurred in causing, the bodily injury, if any, to MacKechnie, which resulted in his death, if you find it did so result? Let your answer be the one word, ‘Yes’ or ‘No,’ accordingly as you shall find.”
This issue was answered in the affirmative, and appellant, by appropriate assignment of error, complains of it because it submitted and called for a finding of the jury upon several separate and distinct issues of fact, which should have been submitted separately. Appellant not only objected to the submission of this question on the ground stated, but sought to have the several issues of fact embodied therein submitted separately, which was denied. Whether the bodily injuries charged to have been sustained by Edward MacKechnie from the fall alleged, independently and exclusively of all other causes, resulted in his death, or whether the use of intoxicating liquors or the disease of arteriosclerosis or Bright’s disease caused, or contributed to cause, or concurred in causing, said bodily injuries and MacKechnie’s death, were issues of fact sharply drawn by the evidence. In submitting the case to the jury on special issues appellant was entitled, at least upon request, to have these several questions of fact submitted separately. By the issue complained of, and the instruction given in connection therewith, the jury was required to answer all of the questions “Yes” or all of them “No”; or if the form of the issue would have authorized an affirmative finding by the jury as to some of the questions embodied in it, and a negative answer to some of them, yet, when told by the instruction accompanying it that their answer must be “Yes” or “No,” they were led to believe, and must haye understood, that they were not authorized to find that either the use of intoxicating liquor caused, or contributed to cause, the bodily injuries that resulted in MacKechnie’s death, or that the disease of arteriosclerosis or Bright’s disease caused, or contributed to cause, such injuries, but that they must either give an affirmative or negative answer to all of those questions of fact. To secure its right to have the questions submitted separately, appellant prepared and requested appropriate special issues to that end. By these issues, which were refused, the jury was called upon to determine and answer separately whether the disease of arteriosclerosis caused, or contributed to cause, the stroke of apoplexy suffered by Edward MacKechnie on the 25th day of October, 1913, the paralysis that followed, and his subsequent death in June, 1916, or whether Bright’s disease caused, or contributed to cause, such results. The submission of the issue complained of, and the refusal of the requested special issues to which we have referred, constituted, in.our opinion, material and prejudicial error.
“You are instructed that if you find and believe that the diseases .of MacKechnie, if any, in evidence caused the stroke of apoplexy on October 25, 1913, or if you believe that the injury, if any, received by him (MacKechnie) on September 25, 1913, and such diseases, if any, concurred and co-operated in causing the apoplexy and paralysis and death, 1 then you will answer question No. 2 requested by the plaintiffs ‘No.’ ”
This charge was refused, and its refusal is assigned as error. Question No. 2, referred to in- the special charge just quoted, is: Did the bodily injuries of MacKechnie, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation and result in his death? Clearly this charge should have been given, or the special issues requested by appellant, and just referred to above, should have been submitted. On the former appeal of this case we were called upon to determine whether or not the refusal of a special charge, embodying the principle of law embraced in the one now under consideration, was error, and we held that it was. We then said: If the diseases referred to caused the stroke of apoplexy, or if the injury received by the assured in the fall and said diseases concurred and cooperated in causing the apoplexy and paralysis, no liability existed; but if the injuries alone caused the apoplexy and paralysis the appellants are liable.
In connection with what we have- said above in relation to the special issues requested by appellant and refused, we desire to say that appellant requested the submission of quite *464 a number of special issues relating to the cause of the bodily injuries claimed to have resulted in the apoplectic stroke, paralysis, and death of Edward MaeKechnie, and we must not be understood as holding that all of such issues should have been submitted. It is, of course, only such as would have submitted singly the issues which we have indicated axDpellant was entitled to have so submitted.
The forty-third assignment of error is that the court erred in not sustaining the objections of the defendants to the opening argument of Judge Hazlewood, counsel for plaintiffs, and not instructing the jury to disregard such argument, all as appears by bill of exception No. 34. The proceedings disclosed by the record, and of which complaint is here made, is regrettable, and doubtless proved injurious to the rights of appellant. We shall not undertake to state all that the record shows occurred. The bill of exception reciting the remarks of counsel, the objections made, and the court’s action cover a little over 34 typewritten pages of the transcript, and that recited in appellant’s brief cover 4 pages. As disclosed, counsel for appellees in argument to the jury, among other things, said:
“I am going to uncover the act and conduct of some of these mep and lay them bare to you, and when you retire from this courtroom I want you to remember these facts, because the poor,old woman from the plains of New Mexico, who hasn’t a friend, nobody except the lawyers against this mighty corporation, gentlemen, who has its agents — ”
At this point counsel for appellant objected to this line of argument, stating that whether Mrs. MaeKechnie has any money, or whether she is a poor woman and without friends, was immaterial; that there is no evidence before the jury as to whether Mrs. MaeKechnie is in bad circumstances or in good circumstances. The court remarked, “Note that exception,’’ and counsel continued:
“Gentlemen of the jury, did you ever run for anything in your life that didn’t sort of pinch or scare or frighten you a little bit? What is the matter with George? (meaning counsel for appellant). What is the matter with these lawyers? Every time we begin to talk about this case as it' is, when we begin to crowd them, you will hear them object. This objecting that has been going on here during the trial of this case made me have one of these horrible dreams.”
Counsel then related his dream, which was, in substance, that he found himself where there was neither ice nor snow, and Satan was sitting on his throne; that he saw a great striiig of men, and learned they were lawyers, and that, in order to keep them from disturbing other occupants of the place, chains had been put around their ankles; that he heard a great commotion, and asked what was wrong; that some one replied, “That is a lawyer, George Wallace, from Dallas, Texas, who is objecting to having chains put on his ankles;” that Satan, after hearing the objections,- said, “George lived in Dallas, and practiced law for forty years, and no court ever sustained one of his objections;” and then, with a great outburst of fire, declared, “Well, we will sustain his objection now, and decree that instead of the chains being placed around his feet they shall be placed around his neck, and he shall be required to walk on his head for two million years.” After relating this dream, counsel said: “I woke up, and I was wet with perspiration, having gone through with such an ordeal. Gentlemen of-the jury, George (referring to appellant’s counsel) ought to have something sustained; he ought to be allowed — ” Here counsel for appellant interposed with the objection that the effect of counsel’s argument now is to criticise counsel for the defendant for having made ob-' jections, and stated, in effect, that counsel for plaintiff had no right to criticise counsel for the defendant in pursuing his legal right. The court here again remarked, “Note that exception;” and counsel for plaintiff, addressing the jury, continued: “I will tell you what I will do; he is a fine gentleman, and I will therefore stop criticism, and just say, ‘Gentlemen of the jury, you do the criticising.’ From this time on, Mr. Sheriff, keep him off of me, and I will say nothing more about him; let the jury determine that question. Let us talk about the case.” Counsel for defendant again objected, saying: “Now, your honor, I also want to object to counsel asking the sheriff to keep me off of him, because I have no idea of getting on him, and it is not in his province to criticise my efforts in objecting.” The court remarked, “That is your right.” Whereupon counsel for the plaintiff, after stating that he did not wish to be misunderstood, and that counsel for the defendant had the right to object, and that nobody says he has not got that right, but that he was not going to concede that counsel for defendant was right and that he was wrong every time, proceeded thus: “I say this, that whenever a 'man can talk, say all he wants to, and make all sorts of gestures that he wishes to make, when it begins to pinch, and when it begins to hurt, here is the pin that I am going to stick him with, then it is that he begins to run.” Counsel for the defendant again objected, and the court remarked: “Xou make a memorandum of that, Mr. Stenographer, and note that counsel has his exception, and ,the court gives him his bill, and requests counsel whenever he sees fit and proper, as his duty to hia client, and his place at this bar, to make objection.” The bill of exceptions shows that the court, some time in the course of counsel’s *465 argument, instructed tlie jury to disregard and not consider that portion of Judge Hazle-wood’s remarks as follows, “Keep Mr. Wallace off of me, and I will not call his name any morealso the following portion of his remarks, “This poor old woman, without friends and without money.” The criticism' of the defendant’s counsel for making objections to the argument of the plaintiff’s counsel, however, does not appear to have been withdrawn, nor the retort that “when it begins to hurt here is the pin that I am going to stick him with, then he begins to run”; nor the remarks, “Did you ever run for anything in your life that didn’t sort of pinch or scare or frighten you a little hit? -What is the matter with George? What is the matter with these lawyers? Every time we begin to talk about the case as it is, when we begin to crowd them, you will hear them object.” These remarks, so far as the record discloses, were not withdrawn, nor counsel rebuked for making them.
The rules for the government of the district court prescribe that counsel shall be required to confine the argument strictly to the evidence and to arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, and, when indulged in, shall be promptly corrected as a contempt of court. Rule 39 (
There are numerous assignments of error that have not been discussed. They have been, however, carefully considered, with the conclusion reached that they point out no reversible error.
For the errors indicáted the judgment is reversed and the cause remanded.
<g=>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
ig^For other oases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes