Price v. Biscoe

Decision Date14 April 1943
Docket NumberNo. 2460-8043.,2460-8043.
Citation170 S.W.2d 729
PartiesPRICE v. BISCOE et al.
CourtTexas Supreme Court

This is an action in trespass to try title brought by Rice Price, petitioner, against Ogden Porter Biscoe (and her husband), respondent, for the title and possession of an undivided 1/6 interest in 116 acres of land and to cancel a deed executed on August 29, 1929, by petitioner conveying said undivided interest to respondent. Petitioner alleged that said deed, although absolute on its face, was in fact only a mortgage to secure an indebtedness due by him to her.

Only two issues were submitted to the jury. The first inquired whether petitioner understood and intended the deed to be only a mortgage. The other presented the same inquiry as to respondent. Both were answered in the affirmative. Thereupon the trial court entered judgment awarding petitioner recovery of the land and respondent recovery of $367.66 against petitioner, that being what he owed her, plus interest, on the "mortgage" debt. That judgment was reversed and the cause remanded by the Court of Civil Appeals at Texarkana. 164 S.W.2d 67.

Four points of error assigned here present only the question of jury misconduct, which was the ground for reversal by the Court of Civil Appeals.

The alleged misconduct occurred during the jury's consideration of the second special issue. It is claimed that some of the jurors wanted to answer it "No" and that it was argued by some that such an answer would create a conflict with the first special issue, which had been answered "Yes", thereby resulting in a "hung jury" and a delay in their getting home. It is alleged that because of this argument special issue No. 2 was finally answered "Yes."

After hearing the testimony presented on respondent's motion for a new trial, the trial court overruled the motion. No request was made for findings of fact and conclusions of law, and he made none.

At this hearing only four witnesses testified, all of whom were called by respondent. Three of them were jurors. The fourth was the bailiff who had charge of the jury. Attaway, Lee and Gilbreath were the jurors. Their testimony presents many conflicts and inconsistencies as to what happened, when it happened and as to its effect. For example, Attaway testified, in part:

"Q. When they asked for the judge — before they asked for the judge—had some of the jurors indicated a desire to answer, in their minds, answer to special issue No. 2 should be `No'? A. Some of them said it would be a hung jury. They said it would be, by answering one of them `yes' and the other `no'. They said `No, that wouldn't do,' would be a hung jury just like it stated; read and discussed right smart bit and finally centered on `no'.

"Q. Finally settled on `no'? A. I mean `yes'.

"Q. Both answered `yes'? A. Yes, sir.

* * * * * *

"Q. Had you been one of the jurors who was convinced at that time that the proper answer to that issue was `no'? A. I tell you the way I seen it. It was `yes' and `yes' for the two questions for my part. That is the way I understood it.

"Q. That it was necessary to answer both questions `yes' or both `no'? A. No, both `yes'.

* * * * * *

"Q. You remember how those issues were at this time? A. I have it wrong, on the last. It was `yes' and `no'. They were both answered `yes', weren't they?

"Q. Yes, sir. A. Last answer to question `no', that is the way it was centered on.

* * * * * *

"Q. What was the situation—believe you testified the jury was anxious to get away. What was the situation reference to members of the jury not desiring under any circumstances of having a hung jury so you would be delayed in going to your homes? A. Well, I don't know just what there was brought up about that. That question there about the only question we spoke about."

Then he testified that some one suggested they send for the trial judge to find out if an answer of "Yes" to the first issue and "No" to the second would result in a hung jury; that, upon being informed that the judge was not immediately available, the jury began a discussion of the evidence on the second issue and decided upon an answer of `Yes' in about fifteen minutes.

"Q. After you discussed the evidence on the issue, then you decided—all jurors decided to answer the question `yes'? A. Yes, sir.

"Q. And you answered it `yes'? You agreed to answer it `yes'? A. Yes, sir.

"Q. Your decision to answer it `yes' was based solely and wholly on the evidence you heard in the case? A. Yes, sir; that is — that second question, answering it `yes'. That is the way I understood it was `no' but that is what the argument come up about, `no' and `yes'.

"Q. You did discuss the testimony after the argument came up? A. Yes, sir.

"Q. After a discussion of the testimony on the issue, then you all agreed to answer that question `yes'? A. Yes, sir, we all agreed.

* * * * * *

"Q. Were you influenced in answering the question by that discussion that you would have a hung jury if you didn't? A. No, I was not really influenced by that. The way the question was asked, didn't seem like there were any that could explain it."

Juror Lee testified that after answering the first issue "Yes", the jury started discussing the second and took several votes without a decision.

"Q. What was the situation reference to Special Issue No. 2 at that time? A. Really didn't understand it at that time to answer.

"Q. Anything said at that time, during the deliberations on special issue No. 2, were any comments made or opinion expressed by members of the jury to this effect: that it would be necessary, that they would be in the position of a hung jury and...

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20 cases
  • Trousdale v. Texas & N. O. R. Co., 12539
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 18 Noviembre 1953
    ...positive fact that Crawford did not make the misconduct statement at all. Credibility is determined by the trial court. Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729, 731; Sproles Motor Freight Lines v. Judge, Tex.Civ.App., 123 S.W.2d 919, The misconduct in the case reduces itself to an iss......
  • Lewis v. Yaggi
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 14 Junio 1979
    ...trial of the original cause. Monkey Grip Rubber Co. v. Walton,122 Tex. 185, 53 S.W.2d 770, 773 (1932, opinion adopted); Price v. Biscoe,141 Tex. 159, 170 S.W.2d 729, 731 (1943, opinion adopted); State v. Walker,334 S.W.2d 611, 614 (Tex.Civ.App. Texarkana 1960, no writ). Thus the court may a......
  • Buckalew v. Butcher-Arthur, Inc., 4514.
    • United States
    • Court of Appeals of Texas
    • 30 Septiembre 1948
    ...v. Walton, 122 Tex. 185, 53 S.W.2d 770; Waggoman v. Fort Worth Well Machinery & Supply Co., 124 Tex. 325, 76 S.W.2d 1005; Price v. Briscoe, 141 Tex. 159, 170 S.W.2d 729; Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; Davis v. Christmas, Tex. Civ.App., 248 S.W. 126; Beaumont, ......
  • City of Houston v. Fondren, 11822.
    • United States
    • Court of Appeals of Texas
    • 7 Noviembre 1946
    ...Glenn, Tex.Civ.App., 8 S.W.2d 735; Prescott v. Metropolitan Life Ins. Co., Tex.Civ.App., 129 S.W.2d 821, writ dismissed; Price v. Briscoe, 141 Tex. 159, 170 S.W.2d 729; Russell v. Adams, Tex.Civ.App., 18 S.W.2d 189; Wallis v. Long, Tex.Civ.App., 75 S.W.2d 138, writ refused; Wilson v. Place,......
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