Bunker v. Lott

• Decision Date: 30 September 1955
• Docket Number: No. 15637,15637
• Citation: 282 S.W.2d 879
• Parties: Jerry BUNKER, Appellant, v. Jack W. LOTT et al., Appellees.
• Court: Texas Court of Appeals

Page 879

282 S.W.2d 879

Jerry BUNKER, Appellant, v. Jack W. LOTT et al., Appellees.

No. 15637.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 30, 1955.

Rehearing Denied Oct. 28, 1955.

Cantey, Hanger, Johnson, Scarborough & Gooch, Howard Barker and Charles L. Stephens, Fort Worth, for appellant.

Pepper & Markward, and Robert C. Pepper, Fort Worth, for appellees.

MASSEY, Chief Justice.

Quare: Where several separate and distinct causes of action against a single defendant are consolidated and tried before a jury, after verdict severed so that the causes are again made the subject of separate cases, judgment entered in such cases, and motions for new trial filed by varying losing parties under the various cases as so severed;-is the defendant (who is the losing party in one case) entitled to a new trial because of jury misconduct, or entitled to ground his appeal on such misconduct, when he has not advanced it as a ground in his last properly filed motion for new trial,-when the various losing plaintiffs were granted new trials because of jury misconduct properly advanced in their respective amended motions for new trial?

(It is to be noted that the character of misconduct considered is such as would have vitiated the verdict as to defendant as well as to the various plaintiffs had it been properly and timely advanced by him as a ground in his motion for new trial.)

Answer: The trial judge is not compelled to grant such a defendant a new trial upon the hearing of his motion therefor, and where the rial judge refuses to grant a new trial, the appellate court will not reverse the judgment of the court below because of jury misconduct.

This appeal is by Jerry bunker, who was the defendant in an automobile negligence suit filed by Jack W. Lott and O. D. Dixon. Lott and Dixon are the appellees in the appeal. They were occupants of the automobile driven by Henry Rayford, which came into collision with the Bunker automobile.

Appellant Bunker was the driver of an automobile containing three passengers, Cullins, Watson and Wyly. The Bunker car collided with the automobile were Rayford. In the Rayford automobile were three other occupants, Johnson, Lott and Dixon. Johnson is now deceased. Four separate suits were filed in the District Courts of Tarrant County, Texas. Appellant was sued by Watson and Wyly, his passengers, in two different suits. He was sued in still a third action by the heirs of Johnson, deceased, and by Rayford. He was sued in a fourth suit by Lott and Dixon.

By agreement of counsel, all suits were consolidated as one, bearing a single number on the docket of the ,48th District Court of Tarrant County, the final language of the court's order of consolidation reading: 'It is therefore ordered, adjudged and decreed that the above entitled and numbered causes be, and that they are hereby consolidated as one under the number and style: No. 66070-A, Leola Johnson et al. v. Frank W. Bunker et al., in the 48th District Court of Tarrant County, Texas.' The order was dated February 13, 1954.

Consolidated trial before a single jury followed. The jury was impaneled to try case No. 66,070-A, embracing the various causes of action against appellant Bunker. By the jury's verdict was established the amount of damages sustained by each plaintiff. However, Rayford was found guilty of contributory negligence inhibiting any recovery by him, and the passengers in the appellant's automobile failed to secure jury findings which would authorize their recovery despite the Guest Statute. This left only the material findings of damages for the Johnson heirs and for Dixon and Lott. The verdict was returned and received on September 23, 1954.

On October 9, 1954, the trial court entered an order of severance and rendered separate judgments under the numbers of the various cases and causes of action previously consolidated. No motion appears and from the record the trial court apparently severed the cases on his own motion 'in the furtherance of convenience and to avoid prejudice', to use the words of the order. Appellant's exception to such action was noted on the court's docket. It is to be noted that the causes of action of the Johnson heirs and Rayford were restored to the original case number under which their two individual causes of action existed prior to the consolidation, and Rayford was denied recovery therein while the Johnson heirs were awarded damages. Both Lott and Dixon were awarded damages under the case number given their joint suit as originally filed. Bunker's guests, Watson and Wyly, were denied recovery under their suits.

Following entry of the several judgments, the appellant and Rayford, Wyly and Watson all filed motions for new trial, subsequently filing amended motions for new trial. Appellant's amended motions in all the case were filed on November 1, 1954. The amended motions for new trial by all the other movants were filed on November 8, 1954, the last day on which they could be filed. All the amended motions, save that of the appellant Bunker, set up jury misconduct as a ground for new trial. It is to be remembered that all this followed the order of severance of the court, and each motion was filed under individually numbered cases.

No doubt by reason of the jury misconduct set up by amended motions of all the other parties, the appellant was influenced to file instruments which he denominated 'Defendant's Supplement to his Amended Motion for New Trial' in both the case where Lott and Dixon were the plaintiffs, and in the case where the Johnson heirs and Rayford were the plaintiffs. The ground of the 'Supplements' in both cases was jury misconduct. The appellant only was seeking a new trial under the case number where Lott and Dixon were plaintiffs. Both the appellant and Rayford were seeking new trials under the case number where the Johnson heirs and Rayford were plaintiffs.

Since, under the instant appeal Lott and Dixon are the appellees, and it is under the number of another and different appeal that the Johnson heirs are appellees, we shall proceed from this point in this opinion to treat the appeal as one in a case where the motions for new trial in the suit of the Johnson heirs and Henry Rayford are not involved. The statements, declarations and holdings as hereinafter contained do not have application to the appeal in such companion case as will be noted from our opinion thereon.

The question on this appeal resolves itself into an inquiry as to the availability to a losing defendant in a damage suit of jury misconduct as a ground for a new trial, or as a point on appeal, when the misconduct is discovered after he has filed his amended motion for new trial. In connection with the question is the additional inquiry as to whether, under the state of this record, the fact of jury misconduct is one of which the appellate court must take cognizance. It is of course apparent that the trial judge was aware of it, disregarding any question as to whether or not it was properly assigned in appellant's motion for new trial, but he did not see fit to grant a new trial.

Appellant predicates two points upon the contention that the severance of the various causes of action, or sets thereof, from the others with which they were consolidated for trial by agreement, and the entry of separate judgments in the cases as so severed, constituted error. By the very recent opinion in the case of Hamilton v. Hamilton, Tex.1955, 280 S.W.2d 588, it has been established that where separate and distinct causes of action are consolidated by agreement, but after verdict and before ultimate judgment are severed into separate cases, the severance is within the authority of the trial judge under Texas Rules of Civil Procedure, rule 174, and his action in such regard will not be disturbed on appeal in the absence of a demonstration that prejudice to the complaining party resulted therefrom. See also Associated Growers v. Smith, Tex.Civ.App. San Antonio, 1951, 244 S.W.2d 348. In the present instance there is no demonstration by the appellant that prejudice resulted to him in the severance. Rather is it clear that he subsequently suffered from the failure to timely advance the contention of jury misconduct...