Texas Employers Ins. Ass'n v. Poe ( 1952 )

Me. Justice Wilson

delivered the opinion of the Court.

The parties will be identified as in the trial court. Plaintiff, an injured employee, filed this case as an appeal from a workmen’s compensation award. He appeals from a take-nothing judgment based upon an adverse jury verdict.

The one point of error brought forward is whether or not an improper remark of defendant’s counsel requires a reversal.

During cross examination of plaintiff, defendant’s counsel asked the following question:

“After you filed your claim down before the Industrial Accident Board and they didn’t give yon anything, you filed your suit here in this court, didn’t you?”

Plaintiff’s objection was sustained and the question remained unanswered. The trial court first instructed the jury not to consider counsel’s remark for any purpose, and then overruled a motion by plaintiff for mistrial based upon the contention, urged here, that the remark that the Industrial Accident Board “didn’t give you anything” was so inflammatory and prejudicial to plaintiff’s rights that its harmful effects could not be cured by the court’s instruction.

Plaintiff plead (and read to the jury) the fact that he did not intend to “abide by” the award of the Industrial Accident Board and that the purpose of this suit was “to set aside” the award and “to recover compensation” at certain rates. So the jury already knew that plaintiff was dissatisfied with the Board’s award. It is the better practice not to read to the jury those portions of the pleadings with which the jury is not concerned. City of Galveston v. Hill, 151 Texas 139, 246 S. W. 2d 860. There is in the record evidence upon which an impartial and unprejudiced jury could reach the very verdict the jury did reach in this case. Cole v. Waite, 151 Texas 175, 246 S. W. 2d 849. See the opinion of the Court of Civil Appeals, 250 S. W. 2d 619, for a detailed statement of the facts. In answer to Special Issue No. 2, the jury found that plaintiff’s total disability was limited to one week. This is supported by plaintiff’s testimony that he had worked during the period for which he sought compensation. The jury was not required to believe his explanation that he worked in spite of the pain or the medical testimony that arthritis was the result of an explosion. There is no showing that the jury knew that one week’s time is noncompensable under Sec. 6 of Art. 8306, Y.A.C. S., or that this finding resulted from other than an unprejudiced appraisal of the evidence. There is no showing that the jury knew the effect of their answer to Special Issue No. 12 which was that the incapacity was due solely to stomach ulcers. The mere fact that the verdict resulted in a take-nothing judgment does not establish that it was the result of prejudice. Rules 434 and 503, T.R.C.P.

We hold that under the circumstances of this case this remark was not so inflammatory that it could not be cured by the trial court’s instruction. Texas Employers Ins. Ass’n. v. Little, Texas C.C.A., 1936, 96 S. W. 2d 677; Texas Indemnity Ins. Co. v. Halliburton, 235 S. W. 2d 499. Because of the court’s instruction it is not error requiring a reversal. We need not consider the defendant’s contention that the remark was invited.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

Opinion delivered December 10, 1952.