Bauer v. Bauer, 4008.

• Decision Date: 14 November 1940
• Docket Number: No. 4008.,4008.
• Citation: 145 S.W.2d 599
• Parties: BAUER v. BAUER.
• Court: Texas Court of Appeals

145 S.W.2d 599

BAUER v. BAUER.

No. 4008.

Court of Civil Appeals of Texas. El Paso.

November 14, 1940.

Appeal from District Court, San Patricio County; W. G. Gayle, Judge.

Action by Fritz J. Bauer, Jr., against William H. Bauer, for damages for an alleged assault and battery on plaintiff's wife. From an unsatisfactory judgment, plaintiff appeals.

Affirmed.

Phil D. Woodruff, of Houston, for appellant.

W. B. Moss, of Sinton, and Seale & Wood, of Corpus Christi, for appellee.

PRICE, Chief Justice.

This is an appeal from the District Court of San Patricio County. Fritz J. Bauer, Jr., as plaintiff, sought to recover damages against William H. Bauer, defendant, for an alleged assault and battery on the wife of said plaintiff. The trial was to a jury, special issues were submitted, and judgment entered that plaintiff recover the sum of one dollar. Judgment as to costs was in accordance with Article 2060, R.S.

Finding of the jury was that no actual damages were suffered by reason of the assault and battery. Exemplary damages were found in the sum of $250.

There is no statement of facts and the appeal assigns error as to the court overruling a motion made by plaintiff to discharge the jury and declare a mistrial.

There is a recitation of the facts relating to this matter contained in the order of the court overruling the motion. No bills of exception appear in the record. Perhaps Subsection 4 of Article 2237, Vernon's Statutes, is broad enough to give jurisdiction to review the alleged error.

From the recitals in the order overruling the motion it appeared on October 18, 1939, a jury was selected to try this case. The case was recessed to October 20th; this, with the consent and acquiescence of plaintiff. On October 19th another case was tried, which was an action involving an assault and battery. Several members of the jury already impaneled in this case were likewise impaneled in the case tried on the 19th. On the 20th of October the jury in this case, impaneled, as aforesaid, on the 18th, reported. Plaintiff then made his motion to declare a mistrial on the ground that eight members of the jury had on the day previous tried an assault and battery case where damages were sought. This motion was overruled by the court, and plaintiff excepted.

The parties, issues and attorneys in the case tried on the 19th were dissimilar to those in this case. Of course a party is entitled to a fair and impartial trial and to obtain this, a fair and impartial jury is requisite. If this...