Texas Employers' Insurance Ass'n v. Burge

610 S.W.2d 524, 1980 Tex. App. LEXIS 4215

• Court: Court of Appeals of Texas
• Decided: November 6, 1980
• Docket: 8495
• Status: Published

Opinions

DIES, Chief Justice.

This is a worker’s compensation suit wherein Robert F. Burge, as plaintiff below, sued Texas Employers’ Insurance Association, defendant below, and secured a judgment, from which the latter brings this appeal in two points of error. The parties herein will be referred to as they were below.

Defendant’s first point of error contends the trial court erred by refusing to grant its motion to shuffle or quash the jury panel, and defendant was thereby denied a fair trial because numerous jurors had been excused from service for unauthorized and illegal reasons outside the presence of the parties.

Jefferson County operates under the interchangeable jury system, and one judge organizes all jurors. In the case at bar, plaintiff made his objections before the court assigned to try the case. He should have made these objections — for us to consider them — before and at the time the organizing judge was selecting the prospective jurors for the period. Texas and New Orleans Railroad Company v. Jacks, 306 S.W.2d 790 (Tex.Civ.App.—Beaumont 1957, writ ref’d n.r.e.). This point is overruled.

Defendant’s second point of error complains of certain argument of plaintiff as follows:

a. Plaintiff’s counsel argued: “Do you think this claims investigator sitting here, he investigated this claim, do you think if there was someone out there working with him [he] could come in and say Hey he does everything just like everybody else.” After objection the trial court admonished plaintiff’s counsel to “stay in the record.”

b. Plaintiff’s counsel’s argument that Texas Employers’ Insurance Association, by selling the policy of worker’s compensation, was contractually obligated to plaintiff but was now trying to get out of the contract, “to break it,” and “[l]et him off the hook.” The court admonished the jury to “disregard the remarks” and “you are taking your time making inflammatory arguments” (to plaintiff’s counsel).

c. Plaintiff’s counsel referring to the physician defendant called to testify as “his boy” and “[t]hat’s his doctor.” The court said: “Stay in the record,” and “He [the physician] is not anybody’s, he’s an expert witness.”

In a recent case our Supreme Court stated: “There are only rare instances of incurable harm from improper argument.” Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex.1979). That court sets out seven elements the complainant must prove to obtain reversal for improper argument.

Interesting also is the court’s pointed referral to the present rule of “[h]armless error” and it evolution in Texas [Tex.R.Civ.P. 484 and 508].

See also the recent case of Lorusso v. Members Mutual Insurance Company, 603 S.W.2d 818, 819-21 (Tex.1980):

“The language of the rule [503] is clear and direct. The rule recognizes that a litigant is not entitled to a perfect trial for, indeed, few trials are perfect. In recognition of this fact, the harmless error rule establishes a sound and common sense policy of not reversing a judgment unless the error or errors can be said to have contributed in a substantial way to bring about the adverse judgment.... The rule by its very term applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal, [at 819-20].

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“We recognize the impossibility of prescribing a specific test for determining whether any error, be it the improper admission or exclusion of evidence, improper argument, or the giving or depriving of a party of the proper number of peremptory challenges, ‘was reasonably calculated to cause and probably did cause the rendition of an improper judgment.’ Such a determination necessarily is a judgment call entrusted to the sound discretion and good senses of the reviewing court.” [at 821].

While we do not approve of the argument complained of in the case at bar, it does not reach the level of inflammatory remarks we found in Fortenberry v. Fortenberry, 582 S.W.2d 188 (Tex.Civ.App.—Beaumont 1979, writ ref’d n.r.e.).

We find the errors in the argument complained of to be harmless, overrule this point, and affirm the judgment below.

AFFIRMED.