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At a Glance:
Title:
Texas Emp. Ins. Ass'n v. Poe
Date:
January 14, 1953
Citation:
152 Tex. 18
Court:
Texas Supreme Court
Status:
Published Opinion

Texas Emp. Ins. Ass'n v. Poe

Supreme Court of Texas.

TEXAS EMPLOYERS INS. ASS’N

v.

POE.

No. A-3634.

|

Dec. 10, 1952.

|

Rehearing Denied Jan. 14, 1953.

Attorneys & Firms

*18 **646 Whitaker, Turpin, Kerr, Smith & Brooks, Midland, for petitioner.

*19 Barber & Barber, Colorado City, for respondent.

Opinion

WILSON, Justice.

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 you 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. 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 Indemnity Ins. Co. v. Halliburton, Tex.Civ.App., 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.

GARWOOD, Justice (dissenting).

I regret to be unable to agree that the trial court correctly refused a mistrial. The question was in effect a statement by counsel of inadmissible evidence that normally **647 would be quite as prejudicial, as if counsel for the employee had similarly stated in a suit by the insurance carrier that the Board had awarded total and permanent disability. The statement is not ‘inflammatory’ but one of the type which, in dealing with improper argument, we have usually held not curable by an appropriate admonition of the trial judge, while at the same time holding the ‘inflammatory’ type to be curable. See Wade v. Texas Employers Ins. Ass’n, Tex.Sup., 244 S.W.2d 197. There is no great difference between a statement by counsel made to a witness in the presence of the jury and one made by him to the jury in the course of argument. The importance of the error is not so much in the particular case as in the fact that, with our decision as a precedent, lawyers who are so inclined, may *21 now with impunity transgress the rules and thus cause others to do the same in self-defense, with resultant lowering of our standards of practice.

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