Baker v. Sturgeon

• Decision Date: 16 October 1962
• Docket Number: No. 7407,7407
• Citation: 361 S.W.2d 610
• Parties: Mildred W. BAKER, et vir, Appellants, v. H. B. STURGEON et al., Appellees.
• Court: Texas Court of Appeals

Page 610

361 S.W.2d 610

Mildred W. BAKER, et vir, Appellants, v. H. B. STURGEON et al., Appellees.

No. 7407.

Court of Civil Appeals of Texas, Texarkana.

Oct. 16, 1962.

Rehearing Denied Nov. 13, 1962.

J. Donald McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellants.

Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, for appellees.

CHADICK, Chief Justice.

This is a common law tort action. The trial court rendered judgment awarding damages to the plaintiffs, appellees here, and the judgment is affirmed. The opinion filed herein September 11, 1962 is withdrawn.

Mrs. Cleo Sturgeon, wife of plaintiff, H. B. Sturgeon, died instantaneously in a head-on collision between the Sturgeons' 1957 Plymouth sedan automobile and a 1960 model Chevrolet station wagon driven by Mrs. Mildred Baker. Mr. Sturgeon was driving westward on U. S. Highway 80, and Mrs. Baker was traveling eastward along the highway a few miles west of Waskom, Harrison County, Texas, when the collision occurred. The Sturgeon vehicle was occupied by Mr. Sturgeon and his wife, the station wagon by Mrs. Baker and her young son. Besides fatal injury to Mrs. Sturgeon other occupants of both vehicles were injured in varying degrees.

H. B. Sturgeon and Ann Sturgeon, the seventeen year old daughter of the deceased Cleo Sturgeon, brought suit against Mrs. Baker and her husband, Omor Baker, in a District Court of Hopkins County, for damages accruing to them as a result of the collision. The Baker couple are non-residents of the State of Texas; the Sturgeons resided in Hopkins County. The answer filed by the Bakers, besides defensive pleading, contained a cross-action for damages against appellee H. B. Sturgeon. Eight of the appellants' eleven points of error will be quoted and considered in numerical order; other points have been carefully considered and found not to present reversible error and are respectfully overruled.

'FIRST POINT OF ERROR:

'The Court erred in failing to grant a new trial because of the improper conduct of the jury in arriving at its answers to the questions propounded, to the prejudice of defendant. (Germane to Assignment of Error No. 14).'

The evidence offered upon the issue of jury misconduct was conflicting in its salient features. These contradictions were resolved by the trial court against the appellant. This court is bound by the trial judge's fact finding on controverted issues of fact. State of Texas v. Wair, Tex., 351 S.W.2d 878; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; Saladiner v. Polanco, Tex.Civ.App., 160 S.W.2d 531, er. ref.; Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134, N.R.E.; Martin v. shell Oil Co., Tex.Civ.App., 262 S.W.2d 564, N.W.H.; Morgan v. State, Tex.Civ.App. 343 S.W.2d 738, N.R.E. The point is overruled.

'SECOND POINT OF ERROR:

'The Court erred in not permitting counsel for defendant to fully develop the improper conduct of the jury in arriving at its verdict and the prejudicial effect thereof. (Germane to Assignment of Error No. 14).'

The point is without a foundation in an assignment in the motion for new trial. The brief indicates that the point is germane to Assignment of Error No. 14, but the ruling occasioning complaint occurred after the Amended Motion for New Trial was filed. There is no doubt that appellants are entitled to have the point considered. See Jones v. Elliott, Tex.Civ.App., 259 S.W.2d 288, N.R.E., 263 S.W.2d 250; Thompson v. State of Texas, Tex.Civ.App., 311 S.W.2d 927, N.R.E., and Bunker v. Johnson, Tex.Civ.App., 282 S.W.2d 884, N.W.H.

Appellants, in argument under this point, identify the jurors Olin Perkins, H. G. Parish, and Mrs. Lonnie Campbell, each of whom was examined in the jury misconduct inquisition, as the source of evidence of jury misconduct the trial court's rulings prevented them from developing. The affidavit stating the facts of misconduct attached to the amended motion for new trial contained the statement that the juror, Mrs. Campbell, had related to the affiant that the jury considered the loss of society, affection and companionship of Cleo Sturgeon in arriving at the damages sustained by appellees, H. B. Sturgeon and Ann Sturgeon. The affidavit did not mention juror Olin Perkins, and stated only that H. G. Parish 'advised that * * * he was through with the case'.

The record shows that in each instance, when the ruling now the basis of complaint was made, a bill of exception was not made or requested showing the testimony the jurors would give if permitted to answer the propounded questions.

Examination of all cases ¹ since Roy Jones Lumber Company v. Murphy, 139 Tex. 478, 163 S.W.2d 644 involving a limitation on admission of evidence of jury misconduct indicates that the excluded evidence was brought forward for appellate review by a bill of exceptions of that the trial court refused a request for permission to make a bill; none appear to have considered a complaint where the record was similar to this under discussion. Thompson v. State, Tex.Civ.App., 311 S.W.2d 927, N.R.E. says:

'* * * since appellant did not perfect his bill as to what these jurors did or what they saw or what discussions or comments were made by them while they were there, we cannot say that such conduct constitutes reversible error as a matter of law. * * * It was appellant's duty to perfect his bill of exception. See McCormick & Ray Texas Law of Evidence, p. 25, par. 20; McAuley v. Harris, 71 Tex. 631, 639, 9 S.W. 679; Shippers Compress & Warehouse Co. v. Davidson, 35 Tex.Civ.App. 558, 80 S.W. 1032; Martinez v. Pena, Tex.Civ.App., 139 S.W.2d 337, point 5; see also City of Corsicana v. Marino, Tex.Civ.App., 282 S.W.2d 720, points 3 and 4; 3A Tex.Dig. Appeal & Error k 692(1).'

In the later case of Moran Utilities Co. v. McHaney, Tex.Civ.App., 325 S.W.2d 712, N.W.H. it is said:

'Where no affidavit or other written statement of a juror is furnished the court in a comparable situation, it is incumbent upon the party complaining to make a bill of his proffered testimony or a sufficient part thereof to show the court his action is based 'upon knowledge and not suspicion or hope.' [139 Tex. 478, 163 S.W.2d 646] Nunn v. Daly, Tex.Civ.App., 150 S.W.2d 834; Hobbs v. Slayton, Tex.Civ.App., 265 S.W.2d 838. * * *'

The absence of a record showing the answers expected from the jurors Perkins and Parish, and that such evidence would have been favorable to the appellants' contention, subverts the base of review on appeal. Excluding the testimony of jurors Perkins and Parish is not shown to be reversible error.

Refusing to permit an answer to this question, 'Mrs. Campbell, did the jury agree that some damages should be awarded to Mr. Sturgeon and the daughter by reason of the loss of companionship of Mrs. Sturgeon?' casts the complaint about the exclusion of Mrs. Lonnie Campbell's answer in a different light to that of the jurors Perkins and Parish as the affidavit on file shows that counsel for appellant had reason to expect an affirmative answer from Mrs. Campbell. The court sustained the objection to this question on the grounds that it was repetitious. Previous to asking the quoted question counsel for appellant propounded a question and received an answer as follows:

'Q. Do you recall, Mrs. Campbell, your talking about and other jurors talking about the loss to these parties by reason of the loss of companionship and affection of Mrs. Sturgeon?

'A. Yes, we did.

'Q. And that was one of the things you talked about in the jury room.

'A. Yes.

'Q. And you took that into consideration?

'A. Yes.'

Plainly the answer excluded was in reply to a repetitious variant of a former question. Admission of an answer to the repetitious question was discretionary with the trial judge. See Finto v. Texas & New Orleans Railroad Co., Tex.Civ.App., 265 S.W.2d 606; N.W.H.; Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242; Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556, N.R.E. Reversible error is not shown.

'THIRD POINT OF ERROR:

'The Court erred in failing to submit to the jury either of the defendants' requested special issues making inquiry of the jury as to whether or not the plaintiff failed to timely apply his brakes. (Germane to Assignment of Error No. 12).'

'FOURTH POINT OF ERROR:

'The Court erred in its refusal to submit an issue to the jury making inquiry as to whether or not the accident was unavoidable accident as requested by defendant. (Germane to Assignment of Error No. 12).'

Counsel requested the trial judge to give seven special issues, among them the issues mentioned in the two points of error quoted. All requested issues were refused. The assignment of error in the motion for new trial was:

'12. The Court erred in failing to submit to the jury defendant's requested special issues, each and all of them thereby depriving defendants of defensive issues that they were entitled to have presented to the jury in their behalf to the prejudice of defendants.'

These two points of error must be overruled because the assignment is multifarious and does not distinctly point out a particular act alleged to be erroneous. The assignment complains of the failure of the court to give all requested special issues, as well as each of them, but does not single out a specific issue and bring it to the court's attention. The points briefed are failure in two instances to give particular requested issues. Abandonment of the other five requested issues appears to be a concession that the request as to the abandoned issues was not meritorious. The assignment cast upon the trial judge the task of sorting through the several requests to find which, if any, had merit. The assignment is not in compliance with Rules 320, 321, 322, and 374; it did not clearly identify and particularize appellants' complaint in such manner that the trial judge, examining the motion, would...