Texas Employers' Ins. Ass'n v. Wells ( 1947 )

On Motion for Rehearing.

PER CURIAM.

The appellant again urges his fifth ¡joint of error contending that the argument made by appellee’s counsel was of such a nature as to demand a reversal. A review of the record reveals that after appellee’s counsel made the statement shown in our original opinion, the appellant objected and the court overruled his objection. The appellant’s counsel did not continue or elucidate upon the subject of how many doctors his client was financially able to employ but passed off his previous statement by saying: “You just make your answers from the evidence, gentlemen. I believe you heard what these doctors testified.”

Undoubtedly, under the holdings of our courts, no error would have existed if the trial court had sustained appellant’s objection. Ramirez v. Acker et al., 134 Tex. 647, 138 S.W.2d 1054; Carson v. Amberson, Tex.Civ.App., 148 S.W.2d 972, Dism.Judgm.Cor.; King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855. In Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311, the Supreme Court laid down the rule that reversal will not follow where it clearly appears that no injuries could have resulted from the argument. In this case the appellee pleaded that as a result of the personal injuries sustained in the accident, he was totally and permanently incapacitated and Dr. Snow, his witness, so testified. The appellant’s three medical witnesses did not consider the appellee’s injuries that extensive. The testimony would have warranted a finding of total and permanent incapacity, but the jury fixed the ap-pellee’s incapacity as total for a period of only five weeks and determined that his permanent partial incapacity amounted to only 50 percent. From this action on the part of the. jury, we believe it is clear that no injury to appellant resulted from this portion of appellee’s argument or from the fact that the trial court overruled appellant’s objection.