South Texas Coaches v. Woodard , 123 S.W.2d 395 ( 1937 )

On Motion for Rehearing. It was certainly error, under the decisions by the Supreme Court, on the part of appellee to inject into the trial of this case coverage by appellant of insurance. Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234; Texas Company v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Southland Greyhound Lines, Inc., v. Cotten, 126 Tex. 596, 91 S.W.2d 326. There is no affirmative showing by the record in this case that no injury was visited on appellant by reason of the occurrence of such error. The most that can be said from the facts bearing on this point in our original opinion is that it does not affirmatively appear that appellant was injured. Under the ruling in Southland Greyhound Lines, Inc., v. Cotten, supra, this is not enough.

The fact that coverage of appellant by insurance was injected into the case only through inadvertence on the part of appellee's counsel does not, under the principle which excludes such injection, make it any less harmful to appellant. In cases reversed because insurance is injected into them by appellee, the reversal is not to punish the appellee, but to prevent injustice to the complaining appellant who was not responsible therefor. Lone Star Gas Company v. Coates et al., Tex. Civ. App.241 S.W. 1111.

Because of the complained of injection of insurance, appellant's motion for rehearing is granted, the trial court's judgment is reversed, and the cause is remanded for another trial.

Mr. Special Commissioner MONTEITH has helpfully rendered the court on this reconsideration the assistance contemplated by R.S. art. 1813(b), and in such capacity fully concurs in this opinion; Mr. Associate Justice GRAVES, however, acquiesces in the remanding with reluctance, under his view that the effect here now given — in the attending circumstances — to the Supreme Court's above-cited pronouncements on this question carry them to the verge, if not over the brink, of sound judicial application.

Motion granted, judgment reversed and cause remanded.