Reese v. Security National Insurance Co.

445 S.W.2d 811
CourtCourt of Appeals of Texas
DecidedSeptember 24, 1969
DocketNo. 14792
StatusPublished
Cited by2 cases

This text of 445 S.W.2d 811 (Reese v. Security National Insurance Co.) 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
Reese v. Security National Insurance Co., 445 S.W.2d 811 (Tex. Ct. App. 1969).

Opinion

KLINGEMAN, Justice.

This appeal arises out of a workmen’s compensation suit tried to a jury, resulting in a verdict that plaintiff, Joel Reese, Jr., take nothing against Security National Insurance Company. The jury found that plaintiff had sustained an accidental injury on September 11, 1967, in the course of his employment; that such injury was not a producing cause of any incapacity to work; and that any incapacity which plaintiff had suffered since September 11, 1967, was due solely to some prior physical condition.

Plaintiff, by his first five points of error, complains that the trial court erred : (1) in overruling plaintiff’s motion for mistrial based upon reference by defendant’s attorney, in his opening statement to the jury, to alleged Black Muslim activities on the part of plaintiff; (2) in allowing testimony by a witness as to Black Muslim activities on the part of plaintiff; (3) in allowing testimony as to circumstances which caused plaintiff to lose another job; (4) in overruling plaintiff’s motion for mistrial based upon a question asked by defendant’s counsel as to whether a 1963 wrist injury incurred by plaintiff was the result of a gunshot wound; (5) in overruling plaintiff’s motion for mistrial based upon the cumulative effect of errors committed by the trial court. These points will be discussed together.

It is plaintiff’s contention that the statements and testimony complained of in his first five points of error were of such prejudicial and inflammatory nature as to make it impossible for him to get a fair and impartial trial.

Defendant asserts: (a) that all of such testimony and statements were relevant and admissible in support of its contention that plaintiff did not suffer an on-the-job injury on September 11, 1967, and that plaintiff’s inability to obtain and hold a job was not due to any injury he sustained but was attributable to plaintiff’s attitude and to his work history; (b) that evidence tending to show that plaintiff was an unsatisfactory employee was proper and relevant rebuttal to testimony by plaintiff’s witnesses that he was a good worker; (c) that any error in admitting evidence as to Black Muslim activities was cured by the trial court’s instruction during the trial and by the court’s charge; (d) that any error complained of in such points of error is harmless error.

The issue as to whether plaintiff suffered an injury in the course of his employment on September 11, 1967, was a contested one. Plaintiff testified that on such date while working for Inwood Construction Company, he and a fellow employee were moving a bundle of about twelve steel rods weighing approximately 300 pounds; that after picking up his end he was holding it under his arm, and when his co-employee dropped the other end it pulled something in his back. After moving to another work area, he noticed that he could hardly bend, and he then notified his foreman, who had been standing close by at the time, of the claimed accident. Although requested by plaintiff to testify, the co-worker would not do so unless served with a subpoena, and did not testify. To controvert plaintiff’s testimony, defendant called the foreman as a witness. Such foreman testified that at the time of the claimed accident he was standing nearby, observing the work, but did not see any type of accident occur, or anyone drop anything; that there were no bundles of steel [813]*813rods there at that time; that it would have been against union rules for plaintiff to move a bundle of steel rods because plaintiff was not an iron worker, and no one but an iron worker was allowed to move bundles of steel rods.

Plaintiff testified that he considered himself a good worker and two witnesses who had worked with him testified that he was a good worker. Defendant subsequently presented testimony by the labor foreman, who had worked with plaintiff on another job in addition to the Inwood job, that plaintiff was an unsatisfactory employee; that prior to his injury on September 11, 1967, on the Inwood job, plaintiff missed a great deal of time from work; that he was not doing his work as far as the job was concerned, and that he was fired because he wouldn’t work. Mr. Rumsower, the maintenance and operation officer for the Tower of the Americas, testified that plaintiff worked under him at HemisFair after the accident here involved; that he was not a good laborer; that he spent much of his time talking with other workers, and this was holding up what was required to be done. A security guard at HemisFair testified that on one occasion while plaintiff was working at HemisFair, plaintiff walked into the kitchen at the Lone Star Pavilion, took a sandwich and was starting to eat it ; that the guard asked plaintiff if anyone had given him permission to take a sandwich and plaintiff stated, “No one gives me permission to do anything,” that after some discussion plaintiff called the guard about three names, hit him and pushed him backwards; and that plaintiff did not appear to have any physical impairment of any kind at that time.

POINTS OF ERROR PERTAINING TO BLACK MUSLIM REFERENCES

Although a complete transcript of the attorneys’ opening remarks to the jury is not contained in the record, it appears from plaintiff’s bill of exception that defendant’s counsel, in his opening statement to the jury, stated that at one time plaintiff was employed by HemisFair where he was not a satisfactory employee and, as a matter of fact, became engaged in activities not in furtherance of his employer’s business; that his supervisor made an investigation and satisfied himself that plaintiff was engaged in Black Muslim activities, and he was thereafter transfered to another department, where, within a couple of weeks, he challenged a security officer after an argument and was discharged immediately thereafter. During the trial, Mr. Rumsower, the maintenance and operations officer for the Tower of the Americas, after testifying that plaintiff was not a good worker, when asked whether as a result of his work activities, or lack of work activities, he saw fit to make an investigation of what plaintiff was doing or not doing on the job stated: “Well, I began to see him talking with other people quite often and it was, in my opinion, holding up what we were required to do. So I attempted to find out what was happening, and I satisfied myself that he was talking to other people regarding the Black Muslim organization.” Later in the trial, the court unequivocally instructed the jury not to consider anything about Black Muslim, and in the court’s charge the jury was instructed “Not to consider any statement, question or answer by counsel or witnesses regarding Black Muslim activities.”

Argument of counsel which is improper only because it is calculated to arouse prejudice is usually regarded as the “curable” type. Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298 (1956); Wade v. Texas Employers’ Insurance Association, 150 Tex. 557, 244 S.W.2d 197 (1951). The presumption on appeal is that the jury excluded evidence as instructed and based its verdict on evidence properly before it. Duncan v. Smith, 393 S.W.2d 798 (Tex.Sup.1965); Walker v. Texas Employers’ Insurance Association, supra.

We cannot say from this record that the argument complained of was rea[814]

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445 S.W.2d 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-security-national-insurance-co-texapp-1969.