Buel O. Russell, et ux., et al v. Worley Land Company and Insurance, et al.--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-92-210-CV

BUEL O. RUSSELL, ET UX., ET AL.,

Appellants

v.

WORLEY LAND COMPANY AND INSURANCE, ET AL.,

Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # 249-460-89

OPINION ON MOTION FOR REHEARING

Three individuals appealed from an adverse judgment in the trial court: Buel O. Russell and his wife, Mozelle Russell, and Elizabeth Nikels Eyster. The Russells and Eyster purchased separate tracts of land from the Worleys but sued jointly, alleging fraud in the sale of the property. Eyster has filed a motion for rehearing containing two points of error. First, she complains of our holding that testimony of Buel Russell concerning his purchase of flood insurance was properly admitted to impeach Russell. Second, she asserts that, because the evidence is "totally irrelevant as to Ms. Eyster," we should sustain her point of error, reverse the judgment as to her, sever her cause of action from that of the Russells, and remand her cause for a new trial.

Rule 105(a) of the Rules of Civil Evidence provides:

(a) When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

Tex. R. Civ. Evid. 105(a). The record reveals that the court heard arguments outside of the presence of the jury about the admissibility of the evidence in question. The court ruled that the evidence would be admitted and that a limiting instruction would be given. The offering party then proposed the wording for an instruction, to which the appellants objected as being a comment on the weight of the evidence. The court gave the instruction substantially as suggested by the offering party:

You are instructed that any testimony regarding the existence of insurance coverage protecting against flood loss is admitted for the limited purpose of showing Buel Russell's knowledge, if any, of the mobile home's propensity, if any, to flood prior to May 1989, and for no other purpose.

Thus, the court properly limited the scope of the evidence of flood insurance as required by Rule 105(a). See id.

Eyster's motion for rehearing is denied.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion for Rehearing Denied

Opinion delivered and filed June 16, 1993

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