Southern Underwriters v. Yocham

On Motion for Rehearing.

Plaintiff in error, among other things, complains that the original opinion did not discuss two assignments relating to argument. These assignments were not discussed because it was deemed that reversible error was not thereby presented. However, out of deference to the motion we shall briefly discuss same.

In the opening argument to the jury counsel for defendant in error used the following language: “Now, gentlemen of the jury, all this man is asking of you is that you give him the same just consideration that you would want him to give to you if you were in his place.”

The exception taken at the time of the argument was in substance that same was prejudicial and inflammatory and had the effect of calling upon the jury to place themselves in the position of the plaintiff in the case and thereby consider and take into consideration in arriving at their verdict other matters than those contained in the evidence and the charge.

*346We fail to see any particular impropriety in the argument. It does not seem to be an appeal to passion or prejudice. It introduced no new evidence in the case. The appeal was as to the attitude the jury should adopt in considering the evidence before them. They were asked to give the evidence a just consideration, the same just consideration that they would want from the plaintiff were the jurors in the place of plaintiff. Every man has implanted in his heart a love of justice. Plaintiff had a right to expect and demand justice from the jury. A right feeling man would want and expect nothing more. See Rio Grande, E. P. & S. F. Ry. Co. v. Dupree, et al., Tex.Com.App., 55 S.W.2d 522; Texas & P. R. Co. v. Short, Tex.Civ.App., 62 S.W.2d 995; Ochoa v. Winerich Motor Sales Co. et al., 127 Tex. 542, 94 S.W.2d 416.

In the closing argument counsel for defendant in error used the following language: “Now, gentlemen, this is Dr. Middlebrook’s testimony, and the insurance company has had Grover Yocham examined by Dr. Sanders, and x-rayed by Dr. Ross and x-rayed by Dr. Johnson, let me ask you if Dr. Middlebrook’s testimony is not true, and if Grover Yocham’s testimony is not true, why didn’t they bring them in here to show differently.”

The objection to this argument was in substance that same was highly improper and prejudicial, and assumed that Doctors Johnson, Ross and Sanders would have testified contrary to the position of the defendant had they been present, and further that there was no evidence that said doctors were subject to be called by the defendant, and therefore amounted to the giving of improper testimony before the jury.

It seems by an explanation and qualification embodied in the bill that when the case was called for trial and plaintiff announced ready, the defendant (plaintiff in error here) declined to announce until an agreement was entered into in open court in the presence of the court by the attorneys for both sides that X-ray pictures of the plaintiff be taken by a doctor of the defendant’s selection, to-wit, Dr. H. B. Ross, at five o’clock P. M. of that day, and that when such pictures were dry that plaintiff would then be examined by doctors selected by defendant, to-wit, Doctors Johnson and Sanders; subsequently on the same day such pictures were taken, and on the following morning such examination of plaintiff was made, and the court informed of the facts. Neither Dr. Ross nor Dr. Johnson nor Dr. Sanders testified or was offered as a witness, nor were the X-ray pictures taken offered in evidence.

The three doctors mentioned were selected by plaintiff in error and employed, the X-ray pictures taken and the examination made. It seems that Dr. Middlebrook, defendant in error’s witness, was present at the examination. The examination took place during the trial of the case. The circumstances tended to almost conclusively show that these witnesses were available to plaintiff in error. A fair inference is that they were employed to make the examination for the purpose of testifying on the trial for the defendant and for the tentative purpose of contradicting any testimony of plaintiff harmful to defendant that was not in their opinion the truth. The argument conveys no intimation as to what they would have testified. Its gist is that if Yocham and Dr. Middlebrook were not telling the truth, defendant had available witnesses to contradict the testimony. Plaintiff agreed to a medical examination by the agents of the defendant, and defendant failed to avail itself of the testimony of its agents. In our opinion the argument does not present reversible error. See Marek v. Southern Enterprises, Inc. of Texas, 128 Tex. 377, 99 S.W.2d 594; Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421.

We are of the opinion that there is a distinction between the facts of the cases cited by plaintiff in error in its attack on issue No. 1 and the case at bar.

The motion for rehearing is overruled.