Bradshaw v. Abrams, (No. 1163-5138.)

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: Bradshaw v. Abrams, 24 S.W.2d 372 (Tex. 1930)
• Decision Date: 19 February 1930
• Docket Number: (No. 1163-5138.)
• Parties: BRADSHAW v. ABRAMS et al.

24 S.W.2d 372

BRADSHAW v. ABRAMS et al.

(No. 1163-5138.)

Commission of Appeals of Texas, Section A.

February 19, 1930.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Mrs. Otta F. Abrams and husband against H. D. Bradshaw. Judgment for defendant was reversed by the Court of Civil Appeals [2 S.W.(2d) 917], and defendant brings error. Affirmed.

Hamilton, Frank & Hamilton and Collins & Houston, all of Dallas, for plaintiff in error.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, for defendants in error.

CRITZ, J.

This suit was originally instituted by the defendant in error Mrs. Otta F. Abrams, who will hereafter for convenience be designated plaintiff, joined by her husband, against the plaintiff in error, H. D. Bradshaw, who for convenience will hereafter be designated defendant, in the Forty-Fourth judicial district court of Dallas county, Tex., and is a suit for damages for personal injuries alleged to have been received by plaintiff as the proximate result of the alleged negligence of the defendant on the premises owned and operated by him as a garage and automobile sales house. Plaintiff is alleged to have been injured by stepping on what is known as a "creeper," being a device resting upon four sets of rollers, used by workmen in the garage for the purpose of getting around and under cars while working thereon. Plaintiff alleged that the creeper was negligently left on the floor, and that she stepped on it while at defendant's place of business in connection with repairs which she was having made on an automobile. The defendant pleaded general demurrer, general denial, and contributory negligence on the part of the plaintiff.

In the trial court the case was submitted to the jury on special issues, which issues submitted the negligence of the defendant, proximate cause, contributory negligence of the plaintiff, proximate cause relating to said contributory negligence, and measure of damage. The jury answered to the effect that the defendant was guilty of negligence in leaving the creeper on the floor; that the defendant's negligence was not the proximate cause of the plaintiff's injury; that the plaintiff observed the creeper prior to the time she stepped on it; that the plaintiff was guilty of contributory negligence in proceeding across the floor in the manner she did on the occasion in question; that plaintiff was not guilty of contributory negligence in choosing the route she traveled; that plaintiff's contributory negligence was the direct and proximate cause of her injury, and that she was damaged in the sum of $500. Upon these findings, the trial court rendered judgment for the defendant. In her motion for new trial, the plaintiff alleged misconduct of the jury to the effect that the jury first agreed that the plaintiff should recover $500, and that they would make findings which would permit her to recover that sum, and further that the jury discussed and considered the result of their answers to the issues submitted to them, and attempted to answer the questions so as to accomplish a result rather than as they found the facts to be. On hearing before the court on motion for new trial, five of the jurors testified, and the court, after hearing the testimony of the jurors, overruled the motion. The case was duly appealed by the plaintiff to the Court of Civil Appeals at Dallas, which court reversed the judgment of the trial court. 2 S.W.(2d) 917, 920. The case is now before this court on writ of error granted on application of the defendant, H. D. Bradshaw. The special issues and answers of the jury thereto are set out in full in the opinion of the Court of Civil Appeals, and will not be repeated here for the sake of brevity.

Opinion.

The Court of Civil Appeals holds that the jury was guilty of misconduct, and in so holding uses the following language:

"Under the above facts, we are of the opinion that misconduct within the meaning of said article 2234 [Rev. St. 1925] supra, was established in that the jury did not consider and determine from the evidence solely the answers that should be made to the questions submitted separately, but also took into account and considered the effect that the answer to one special issue would have on answers to be made to other special issues, and the making of the agreement, that appellants were entitled to recover in some sum, before considering and answering the special issues submitting other matters than the amount of damages sustained by the appellant Mrs. Abrams and in attempting to make answers to such special issues for the purpose of carrying out said agreement. This holding is within the rule of decision announced in the following authorities."

By his first assignment of error and propositions thereunder, Bradshaw assigns the above holding as error. Here it will be noted that the effect of the holding is that the jury agreed to do, and tried to do, a thing they did not succeed in accomplishing.

A decision of this case requires a proper construction of articles 2189, 2202, and 2234, R. C. S. 1925, and the application of said articles to the facts and circumstances of this case. Said articles read as follows:

"Art. 2189. In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately. In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. If the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse the request to do so, but the action of the court in refusing may be reviewed on proper exception in the appellate court, and this article shall be construed in connection with the succeeding article."

"Art. 2202. A verdict is a written declaration by a jury of its decision of the issues submitted to them in the case.

"1. It shall be signed by the foreman of the jury and shall comprehend the whole or all the issues submitted to it.

"2. The verdict is either a general or special verdict.

"3. The jury shall render a general or special verdict as the court may direct.

"4. A general verdict is one whereby the jury pronounces generally in favor of one or more parties to the suit upon all or any of the issues submitted to it.

"5. A special verdict is one wherein the jury finds the facts only on issues made up and submitted to them under the direction of the court.

"6. A special verdict found under the provisions of this article shall, as between the parties, be conclusive as to the facts found."

"Art. 2234. Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material."

Now, if a final disposition of this case depended alone on the bare question as to whether or not the jury made an agreement before considering and answering the special issues, to the effect that plaintiff was entitled to a verdict in some sum, and then attempted to answer the question so as to carry out that agreement, we would feel constrained to hold that the evidence heard by the trial court on motion for new trial was...