Cowley v. Page

463 S.W.2d 255, 1971 Tex. App. LEXIS 2786
CourtCourt of Appeals of Texas
DecidedJanuary 12, 1971
DocketNo. 7998
StatusPublished
Cited by1 cases

This text of 463 S.W.2d 255 (Cowley v. Page) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowley v. Page, 463 S.W.2d 255, 1971 Tex. App. LEXIS 2786 (Tex. Ct. App. 1971).

Opinion

DAVIS, Justice.

Two cases were filed as the result of a single collision between two automobiles. When the cases were called for trial, they were consolidated and tried on their merits as one lawsuit. One of the parties had public liability insurance which also insured the same parties under the “uninsured automobile coverage” of the policy.

Plaintiffs in the first suit will be referred to as the Pages and the Defendants will be referred to as the Cowleys. The Pages alleged that the Cowleys were negligent which resulted in damages and personal injuries to all the occupants of the Page’s automobile. The Cowleys had to accept the services of an attorney that was hired by State Farm Mutual Insurance Company.

The Cowleys then secured the services of another attorney and filed the second suit against the State Farm Mutual Insurance Company, hereinafter referred to as the insurance company, in which they alleged that the Pages were negligent, that they were uninsured and they sought damages and personal injuries against the insurance company under the “uninsured automobile coverage” provision of their insurance policy. The attorney representing the insurance company in the first suit had to withdraw and another attorney was employed to represent the insurance company in the Cowleys suit for damages and injuries under the “insured automobile coverage.”

The car being operated by the Pages was traveling in a northerly direction on U. S. Highway 67 and the car being operated by the Cowleys was traveling in a southerly direction on U. S. Highway 67 and the [257]*257collision occurred between Redwater and Maud, Texas.

The car being driven by the Pages was not covered by any insurance at all, either property damage or public liability insurance. The car being operated by the Cow-eys was covered by property damage and public liability insurance and also carried a provision for “uninsured automobile coverage”.

In addition to the adverse allegations of negligence both on the part of the Pages and the Cowleys, there was also evidence offered to that effect. This writer’s opinion cannot conceive of any theory upon which the two cases can be consolidated and tried on their merits without mentioning public liability insurance, or an inference thereto, in favor of the Pages, because of the suit of the Cowleys against the insurance company under the “uninsured automobile coverage”, unless they violate all the rules of procedure, the Insurance Code and the various decisions of all the courts. There are two separate suits and they cannot be tried at the same time.

Prior to the submission of the court’s charge to the jury, the Cowleys and the insurance company that was defending under the public liability coverage excepted, in part, to the court’s charge. The exceptions were overruled.

There were also objections made as to the order of oral argument of counsel to the jury by the Cowleys and the insurance company defending on their public liability coverage and they were overruled. The form of the argument by the trial court that was allowed in the consolidated cases was the Pages could open the argument, the argument would be answered by the attorney representing the insurance company in the suit for damages and personal injuries to the Pages under the public liability coverage. Then the trial court allowed the attorney for the Cowleys to make his opening argument for damages under the uninsured automobile coverage. He then allowed the lawyer for the insurance company to answer the argument on behalf of the insurance company on the uninsured automobile coverage. He then allowed the attorney for the Cowleys to close the argument on the uninsured automobile coverage. He then permitted the attorney for the Pages on the damages and personal injury suit to close the argument.

The special issues were answered on behalf of the Pages. Judgment was entered in their behalf for $181,940.00. A motion for judgment non obstante veredicto was filed by the insurance company and the Cowleys as to the public liability damages and personal injuries as recovered on behalf of the Pages; and a motion for new trial. The motions were .overruled. The insurance company on the issue of damages and personal injuries and the Cowleys have perfected their appeal and filed a joint brief and rely upon the same points of error. They bring forward eight points of error.

By Point No. 1, the insurance company and the Cowleys say the trial court erred in permitting the Pages’ attorney to inject the fact of liability insurance coverage of the Cowleys and the lack of insurance coverage on the part of the Pages during voir dire examination of the jury panel. The jury panel was told by counsel for the Pages, in effect, that his clients were uninsured and that the Cowleys were insured. This was done in a manner in an attempt to avoid the obvious objectionable and erroneous statements by counsel that there was, or was not, insurance in the case. Rojas v. Vuoculo, 1944, 1964, 142 Tex. 152, 177 S.W.2d 962; Dennis v. Hulse, Tex. 1962, 362 S.W.2d 308. During the course of the voir dire examination relative to the claim of the Pages against the Cowleys, the attorney for the Pages repeatedly apprised the jury panel that the Pages were uninsured and that the Cowleys were insured. He did so in the following manner:

“Mr. Wills: All right, good. You may wonder exactly how many lawyers got [258]*258tied into one matter, and I certainly don’t blame you for wondering. The case is styled Porter Albert Page vs. Kenneth Cowley, Kenneth Cowley vs. State Farm Mutual, is the style, the whole style involved today, and this is the lawsuit which is styled the Pages are suing the Cowleys. It involves an automobile accident back in 1967, here in Bowie County, Texas. The Pages, folks I represent, are saying that the Cowleys caused the accident, and we are suing the Cowleys. Now that is the alignment, what it would be. Well, then you go to the other half of the title, and that is Kenneth Cowley vs. State Farm Mutual, and what has happened there is that the Cowleys, who, it is my anticipation, will claim that we were at fault, that we caused the accident, they didn’t but that we caused it, the Cowleys are suing State Farm Mutual under their uninsured motorist provision that the Cowleys were carrying on their insurance.
Mr. Haltom: Your Honor, I have an objection to Mr. Wills going into voir dire on this, and I would like to make the objection there before the Bench, and I would like to have it recorded. We can do this now, or at a later time. I don’t want to delay the voir dire. I represent Mr. and Mrs. Cowley, and I want to make this objection on their behalf at this time.
The Court: All right.
Mr. Haltom: Would the court like me to make it now or later on?
The Court: I believe you have already made it, by this * * *.
Mr. Haltom: Yes, sir, but I would like to make it in more detail at a later time, or now.
The Court: All right, the court will overrule your objection at this time, and give you ample time to make -it later, full and complete.
Mr. Haltom: That will be fine. If there is anything further along these lines, should I go into it, or have my objection run to all of it?

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Related

State Farm Mutual Automobile Insurance Co. v. Cowley
468 S.W.2d 353 (Texas Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
463 S.W.2d 255, 1971 Tex. App. LEXIS 2786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowley-v-page-texapp-1971.