Standard Fire Insurance Co. v. Reese

STEAKLEY, Justice,

dissenting.

I am dismayed by the action of the Court in reversing the judgment of the Court of Civil Appeals by means of the holding that the jury argument here in question “was neither improper nor reversibly harmful.” We ought to confront more positively the particular seriousness in jury argument of attacks upon the professional ethics and integrity of opposing counsel.

In my view, and as held by the unanimous Court of Civil Appeals, 567 S.W.2d 861 , the jury arguments were improper, without support in the evidence and by their very nature incurable. There can hardly be an accusation of more severity and seriousness than the charge that opposing counsel participated in a plot and joined in a combination with two medical doctors to manufacture medical testimony and to provide medical treatment not needed so as to impress a jury with inflated medical charges. Such conduct is calculated to prejudice the jury against the case of the client of the lawyer so charged, and of the medical witnesses presented in his behalf; furthermore, such accusations without foundation in the record magnify the all too prevalent and unjustified cynicism of the lay public with respect to the legal profession. It is a violation of legal ethics to make unfair or derogatory personal reference to opposing counsel. See also The Code of Professional Responsibility promulgated by this Court, governing the conduct of attorneys. In my view, the prejudice and harm *842 to Reese from the jury arguments under review could not have been removed by withdrawal of the charges or by admonition of the court. But here the trial court in responding to an objection upon repetition of the accusation of a lawyer doctor “combination” said only that the accused counsel could reply in his closing argument.

I disagree with the supporting statement in the majority opinion that “there was direct evidence, as well as inferences from the evidence, which supported the argument.” From my examination of the record, there is a complete absence of any direct evidence of a “sham or plot,” or of a Mafrige [the lawyerj-Bachynsky [the doctor]-Buning [another doctor] combination”; or that Reese “drove by a thousand doctors” in reaching the office of Dr. Buning. Indeed, Standard does not claim otherwise in its Application for Writ. But it asserts there was evidence permitting the inference that Dr. Buning was interested only in helping build a case that Reese had suffered a back injury; and that this was at the request of counsel for Reese. I find no evidence in the record to support these claimed inferences. Nor can proof of the fact, if such is a fact, that Reese in going to the office of Dr. Buning drove by a thousand doctors, be supplied, as argued by Standard, as a matter of common knowledge “to any Harris County juror.”

I read the erudite majority as suggesting that hyperbole overrides the absence of supporting evidence. The precedential or supportable value of the writings upon which the majority relies would seem questionable, i. e., Shakespeare, John Milton, Alexander Pope, Robert Burns, William Wordsworth, Isaac Watts, Lord Byron, Thomas Percy, Samuel Taylor Coleridge, Alfred Lord Tennyson, Henry David Thoreau, John Ruskin, John Davidson, and Rudyard Kipling. I suggest our own writings are more in point.

In Gulf, C. & S.F. Ry. Co. v. Greenlee, 70 Tex. 553 , 8 S.W. 129 (1888), this Court spoke in terms of whether the remarks to the jury were so plainly prejudicial to the other party as to demand that the verdict be set aside. Citing Greenlee , it was said in Wade v. Texas Employers’ Insurance Association, 150 Tex. 557 , 244 S.W.2d 197 (1951), that we judge by the degree of the vice, not merely the subject matter of the argument, and that the distinction between arguments that are “curable” and those that are not has always been one of difficult application. We stated in Texas Employers’ Insurance Association v. Haywood, 153 Tex. 242 , 266 S.W.2d 856 (1954), that the true test is the degree of prejudice flowing from the argument, i. e., whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. In addition, the Court noted that “We realize that in the course of a hotly contested trial lawyers are apt, even prone, to ‘pull off the gloves’; but lawyers are officers of the court and proper and ethical conduct requires that there be limitations on the extent to which counsel may go in the injection of prejudicial and inadmissible matters, whether by way of cross-examination of witnesses or by way of jury argument.” 266 S.W.2d at 859 , (My italics).

This Court has heretofore considered jury arguments of an accusatory nature against opposing counsel similar to those under review here. It was recited in Lumbermen’s Lloyds v. Loper, 153 Tex. 404 , 269 S.W.2d 367 (1954), that counsel for one party in effect accused counsel for the other party of suborning false testimony on the part of a medical witness; that while the accusation was not in the most positive or provocative words, the imjport was quite plain and was an unfair deduction from the record. It was assumed in Loper, supra, that the arguments were improper and of the type that ordinarily is incurable by admonition from the Bench. Notwithstanding, it was concluded from an examination of the whole record that the jury would in all probability have rendered the same verdict, whatever the nature of the jury argument.

*843 In Cross v. Houston Belt & Terminal Railway Co., 351 S.W.2d 84 (Tex.Civ.App. 1961, writ ref’d n. r. e.), it was charged in jury argument that the party suing for personal injuries allegedly sustained by him while engaged in work “placed himself in the hands of these attorneys who had every reason in the world from their financial interest in this case to do everything that they can to hoodwink this Jury from the time that they went shopping for doctors and they have been trying to put in twisted evidence . . . .” Upon objection to the argument the Court said, “Counsel I think you can draw emphasis from the testimony.” The initial counsel thereupon continued the argument by charging that “ . . . [Wjhen he hired these attorneys it was just a question of manufacturing testimony, and they went out and hire any witnesses they can get to say things that you have heard from this witness stand here . . . .” The Court of Civil Appeals found nothing in the record to justify the argument and it was ruled improper, inflammatory and prejudicial in imputing perjury to the witnesses and subornation of perjury to counsel; and, further, that the argument was incurable and in the light of the jury finding could scarcely have done other than result in harm. We did not disturb this writing in acting on the Application for Writ of Error. See also Southern Pacific Company v. Hubbard, 156 Tex. 525 , 297 S.W.2d 120 (1956); Texas Employers’ Insurance Assoc. v. Butler, 287 S.W.2d 198 (Tex.Civ.App.1956, writ ref’d n. r. e.); Stephens v. Smith, 208 S.W.2d 689 (Tex.Civ.App.1948, writ ref’d n. r. e.).

It is apparent to me that the arguments here in question probably resulted in an improper verdict; and that the self-serving dissertation of the majority on the harmless error rule is pointless. Reese received an injury while at work on or about March 14, 1975. Reese and his wife testified that this did in fact occur; but there is also evidence upon the basis of which a contrary finding could have been made. The finding by the jury of the fact of injury rested principally, if not entirely, upon the testimony of Reese and his wife, both of whom the jury obviously believed as to this. The jury further found, however, that the injury was the producing cause of total incapacity for the brief period from March 14, 1975 to June 10, 1975; and that the injury was not a producing cause of any partial incapacity. The testimony of Reese and his wife was to the effect that the incapacity suffered by Reese as a result of the injury had not lessened; and that his symptoms of pain and inability to engage in work affecting his back had not abated. The medical witness on behalf of Reese was asked the question, “Doctor, I am going to ask you if you can, based on reasonable medical probability, to give an opinion as to a percentage of disability in your opinion that Mr. Reese is suffering from which would be in most reasonable medical probability a projection of his current and future disability.” The answer to this question was, “I think based on that question and based on the type of work that he was doing prior to his injury I would say that he has lost, or he is not able to do approximately sixty percent of the work that he was able to do before this.” There was no other medical witness. Notwithstanding the testimony of' Reese and his wife, and of their medical witness, the jury in its verdict said that the incapacity of Reese continued only for a period of approximately three months, and that he had not suffered any partial incapacity thereafter. There was no testimony addressing a specific period of time of total incapacity, and there is no explanation of why the jury believed Reese and his wife as to the fact of injury, but did not believe them, or their doctor, as to the duration of the resulting incapacity.

Also, as previously noted, the jury found that Reese had expended or incurred the sum of $1,239 as reasonably required medical care. This was notwithstanding the proof that the charges incurred for physical therapy were in the sum of $1,458 and the charges incurred as doctors’ fees were in the sum of $255, or for a total of $1,713. There is no direct evidence in the record challenging these medical charges and it is reasonable to conclude that the jury was *844 probably influenced in the reduction of $474 by the accusation in the jury arguments that there was a “sham or a plot” to “build those medical bills up real high. The higher the medical bills, obviously he has got to be hurt if he has got all of those medical bills. It will look good in front of a jury.”

I would affirm the judgment of the Court of Civil Appeals.

SAM D. JOHNSON, J., joins in this dissent.