Goforth v. Alvey , 153 Tex. 449 ( 1954 )

Mr. Chief Justice Hickman

delivered the opinion of the Court.

This is an action for damages for personal injuries to a pedestrian struck by an automobile. In answer to special issues the jury exonerated petitioner, who was defendant in the trial court, of each and every act of negligence submitted, and found that the minor, who sued by her father as next friend, the respondent herein, committed various acts of contributory negligence. Upon the verdict, judgment was rendered that respondent take nothing. That judgment was reversed and the cause remanded by the Court of Civil Appeals. 263 S.W. 2d 313.

The ground upon which the trial court’s judgment was reversed was improper argument by petitioner’s counsel. The court reasoned that a portion of the argument was improper, and then held that, as a matter of law, it was calculated to cause, and probably did cause, the rendition of an improper judgment. The argument is set out at great length in the opinion of the Court of Civil Appeals. We see no reason for reproducing it here. Even if, at some point, it overstepped the bounds of proper argument, a question which we need not discuss or decide, we are well convinced that it was not, as a matter of law, calculated to cause or that it probably did cause the rendition of an improper judgment. In our view no juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument. The argument was not óf thé type characterized generally as prejudicial and inflammatory, and neither did it introduce into the case any new evidence of a material nature. In the main, the portion of the argument objected to consisted of deductions drawn by the attorney from facts in evidence. His deductions may have been fallacious, but, if so, it is inconceivable to us that the jury could have been influenced improperly by them.

In view of our conclusion above expressed, we find it unnecessary to decide the question presented that there was no proof of negligence on the part of petitioner, and that the evidence was such that it did not admit of any judgment other than that which was rendered.

Because it is our view that it cannot be held, as a matter of law, that the argument by petitioner’s counsel was calculated to cause, and probably did cause, the rendition of an improper judgment, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion delivered June 30, 1954.