American Express Co. v. Paroarello , 1913 Tex. App. LEXIS 484 ( 1913 )

On Rehearing. We are of opinion that the appellant's twelfth assignment of error is well taken, and that the bill of exception in support thereof is sufficient. The bill of exception is as follows: "Be it remembered that upon the trial of the above numbered and entitled cause, while Mr. John W. Parker, attorney for plaintiff, was making his opening argument, he used the following language: ``Now, that is all they have got, those two statements. Will you take them, obtained as they were, against the sworn evidence of these men, in behalf of this widow and her children, and thus deprive this widow and her children, who had no opportunity to be represented? Is it fair, is it just, to the wife and to those children, to take from them their rights on statements obtained in such ex parte manner? Why, gentlemen of the jury, if you can do that, who has any rights in this country? It is a rule among certain corporations, and they make it a practice to take such statements. They go out and take statements. They go out and take statements from their employes when they are in their service, when they are under their influence, when they are in their pay. Then they put them away. Now, then, if in that way they can make testimony that must be accepted by a jury, there is nobody that has any right that is secure against one of them.' To which language of plaintiff's counsel, the American Express Company, in open court, then and there excepted. Be it remembered that the court made no ruling and took no action on the objection of defendant American Express Company so made, and did not reprimand counsel for the remarks so made, and counsel for plaintiff proceeded with his argument as follows: ``I want to add right in this connection, and you can except if you wish to that there is no more reprehensible practice in the administration of justice in this country than this thing of taking these statements and bringing them into the courthouse, and the man, when he takes the witness stand, undertakes to deny them, they bring him forward and attack and denounce him as a liar.' To which statements the defendant, the American Express Company, again in open court excepted, and the court failed to take any action thereon, but permitted counsel to proceed without rebuke. * * *"

The following rules governing the district and county courts (142 S.W. xxi) are applicable to and govern the practice where improper argument is being made:

"Rule 39. Argument on the facts should be addressed to the jury when one is impaneled in a case that is being tried under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, but when indulged in shall be promptly corrected as a contempt of court."

"Rule 41. The court will not be required to wait for objections to be made when the rules as to arguments are violated, but if they should not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection."

It will be seen from an examination of the above rules that a sharp distinction is made as to the requirements of a bill of exception taken to improper argument and of a bill of exception taken to the admission or exclusion of testimony. The latter is controlled by rules 57, 58, and 59 (142 S.W. xxi), which require that the objection shall be stated with enough of the evidence or facts proved in the case to make intelligible the ruling of the court excepted to in reference to the issue made by the pleading. We are therefore of opinion that we erred in our original opinion in holding the bill of exception insufficient.

The majority, Justice HIGGINS dissenting, are of opinion that the remarks of plaintiff's counsel, as complained of, constitute reversible error. The witness Thrift, who was at the time of the accident in the employ of the defendant company driving the mules, voluntarily made and signed one of the written statements as introduced in evidence. In this statement, he describes the accident as follows: "I unblocked my team, mounted seat of my wagon, backed team several feet to clear delivery wagon, and then turned directly towards middle of street; after the front of wagon, or front wheels of my wagon, clearing delivery wagon some six feet, I directed my team straight down the street, facing north; this necessitated another turn, but left three or four feet for the hind wheel of my wagon to clear the delivery wagon; while passing the delivery wagon, the mule attached to same became unruly, stepped backwards, and hung my hind wheel with hind wheel of delivery wagon, this, for the reason that my team was moving, caused delivery wagon to be tilted up in rear. I judge that hind wheel of delivery wagon was raised two feet from ground. I had my team under control, in fact, they were stepping slowly, and when I felt the wagons collide I immediately stopped my team, backed the wagon, which let the delivery to ground. In the meantime, the occupant jumped, or fell, or stumbled. * * * In connection with this affair, I will state positively that my wagon did not run into delivery wagon, but that the mule attached to delivery wagon stepped back sufficiently to cause the rear of that wagon to collide with mine; my front wheel cleared the delivery wagon's hind wheels at least six feet, and the hind wheels of my wagon should have also cleared about five feet, as I was turning my team north when the collision occurred; the second turn of my team would naturally throw the hind wheel of my wagon nearer the delivery wagon, and I had made ample allowance for the clearance. I do not know what caused the delivery wagon mule to back, it is possible that driver wanted to back into place that my wagon — formerly occupied by my wagon, for the reason that delivery was too far in the street to avoid passing traffic. The mule, before and after the collision, appeared to be much excited."

The witness Free was not in the employ of the defendant company. The next day after the accident, he 'phoned the defendant's agent that he had witnessed the accident and offered to make a statement. He describes the accident as follows: "The first I noticed was that Parcarello's mule was unruly, and backing to and fro as if scared of some obstacle near him; the next thing I noticed was that his hind wheel became hung with hind wheel of express wagon; this raised the grocery wagon up at rear about two feet, more or less, from ground; the express driver was walking his team, stopped immediately, backed his wagon, and let the grocery wagon down. However, before this was done, the occupant of the grocery wagon jumped out in direction of automobile, and landed on his face, as far as I could see."

The record discloses that Thrift and Free were the only eyewitnesses testifying upon the trial to any misconduct on the part of the mules of the express wagon at the time of the accident. Without their testimony, appellees had failed to make even a prima facie case against the appellant. Their testimony was a contradiction in every material particular of their signed statements, which they each had voluntarily made when the facts pertaining to the accident were fresh in mind. Their testimony was also a contradiction in every material particular of the testimony of three other witnesses. Thrift and Free and the three witnesses were the only witnesses testifying in the case who saw the accident, and who gave details as to how the accident occurred. The three witnesses' testimony is in complete harmony with the signed statements of Thrift and Free. Plaintiffs right to recover as against the defendant was dependent entirely upon the testimony of the witnesses Thrift and Free. Their testimony raises a sharp conflict upon the vital issue in the case as to whether or not the defendant was guilty of any negligence causing the accident. The question involved, then, is not one as to the preponderance of the evidence, or that the jury's verdict is excessive, but one rather upon the vital issue as to whether or not the defendant is liable at all. Hence it is seen that as between the voluntary statements of Thrift and Free, corroborated by the three other witnesses, and their testimony upon the trial depends the respective rights of the parties.

An examination of the record fails to disclose any suggestion that the statements were improperly obtained or were obtained for any improper motive; or that certain corporations took statements concerning accidents for the improper purposes indicated; or that the defendant company was one among such corporations guilty of the improper conduct as charged; or that the defendant company had used any improper means or influence in obtaining the two statements. The assertions of the counsel in the opening address to the jury were beside the record.

When the remarks were objected to the trial court remained silent, acquiescent. Plaintiff's counsel, to make sure the advantage gained by this action of the court, proceeded to address the jury as follows: "I want to add right in this connection, and you can except if you wish to, that there is no more reprehensible practice in the administration of justice in this country than this thing of taking these statements and bringing them into the courthouse, and the man, when he takes the witness stand, undertakes to deny them, they bring him forward and attack and denounce him as a liar." To this language the defendant again urged objection, but the court failed to act and remained silent. Can it be said, then, that the remarks of the counsel, when viewed in the light of the court's silence, did not have an improper influence upon the jury, as the same pertained to the vital issue in the case? The majority of this court are of the opinion that said remarks made in the opening argument were calculated to have and did have such an influence; nor can it be said that the experienced counsel, in making the remarks, was indulging in idle talk. We feel constrained to say, as was said by Chief Justice Stayton, in Moss v. Sanger Bros., 75 Tex. 321, 12 S.W. 619: "The course pursued in this case was one that no court of justice ought for a moment to tolerate, and it certainly must be true that the judge who tried this case did not fully understand the language of counsel or he would not have permitted it, would have rebuked it, and ought to have punished its author."

For the reasons Indicated, we are of the opinion that the case should be reversed and remanded, and it is so ordered.