Carpenter v. Wyatt Const. Co.

Decision Date31 October 1973
Docket NumberNo. 868,868
Citation501 S.W.2d 748
PartiesJo Ann CARPENTER, et vir, Appellants, v. WYATT CONSTRUCTION COMPANY et al., Appellees. (14th Dist.)
CourtTexas Court of Appeals

George Payne, Tom R. Letbetter, Garrett & Letbetter, Houston, for appellants.

Howell E. Stone, Alice Giessel, Talbert, Giessel & Stone, Houston, for appellees.


This is a suit for personal injuries.

Appellants with admirable directness base their appellate attack upon the single claimed basis that the trial court erred in overruling the challenge for cause of a juror.

Mrs. Jo Ann Carpenter and her husband (appellants) were being shown a house that was under construction, and Mrs. Carpenter fell on a stairway. The house was owned by defendant Wyatt Construction Company (Wyatt), and appellants were being shown the house by Wyatt's sales agent. Appellants pointed the finger of fault principally at a handyman employed by Wyatt to maintain these and other premises. Typical fact issues for jury determination were presented, and the trial

'(I)t is impossible to keep a place clean against the appellants based on a jury verdict.

While being examined by counsel for Wyatt the challenged juror stated:

'(I)t impossible to keep a place clean when you are under construction, so that would be a fixed opinion there. If a building is under construction, it's impossible to keep it clean.'

On examination by appellants' counsel the juror answered 'Yes, sir' to the question 'Did I hear you, understand you to say that you already have a fixed opinion, that in new construction type work, it is impossible to sweep clean or keep completely clean stairs like I have described in this case, in your opinion?' Under examination by appellees' counsel the juror stated he would 'answer the Court's questions that he asks you without regard to any opinion that you might have before we started to trial' and further stated in answer to questions propounded by the court that he would listen to the witnesses and be objective about it and give a fair trial to both sides.

The trial court overruled a challenge for cause made by appellants with respect to this juror. This was error. Bias or prejudice in favor of or against either party is a disqualification of a juror. Tex.Rev.Civ.Stat.Ann. art. 2134 (1964). It is well settled that this qualification extends not only to the parties, but also to the subject matter of the litigation. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.Sup.1963). Bias or prejudice may be a question of fact for the trial court, Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.Sup.1963), but the existence of such bias or prejudice disqualifies a juror as a matter of law and removes all discretion from the trial judge. Compton v. Henrie, Supra, 364 S.W.2d at p. 182.

The effort of counsel and the court to 'rehabilitate' this juror was to no avail. When a juror is biased or prejudiced, his affirmation 'that he can set this aside and try the case fairly upon the law and evidence' should be disregarded. Lumbermen's Insurance Corporation v. Goodman, 304 S.W.2d 139 (Tex.Civ.App.--Beaumont 1957, writ ref'd n.r.e.); Kansas City Life Ins. Co. v. Elmore, 226 S.W. 709 (Tex.Civ.App.--Amarillo 1920, no writ); Texas Cent. R. Co. v. Blanton, 81 S.W. 537 (Tex.Civ.App.1904, no writ); Swap Shop v. Fortune, Supra, 365 S.W.2d at p. 154.

The question remains as to whether appellants have demonstrated harmful error as required by Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 774 (Tex.Sup.1964). The challenge for cause was made during the voir dire examination of the jury. After counsel made their peremptory strikes and the jury panel had been...

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    ...Aircraft Services, Inc., 821 S.W.2d 669, 673 (Tex.App.--Amarillo 1991, writ denied); Carpenter v. Wyatt Constr. Co., 501 S.W.2d 748, 750-51 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.). In this case, after the trial court excused several potential jurors for cause, the court......
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    ...requires that notification be made prior to the actual exercise of those strikes. In Carpenter v. Wyatt Construction Co., 501 S.W.2d 748, 751 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.), the court aptly stated the rationale for the rule as Appellants insist that to require ......
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    • March 10, 1992
    ...River Pipeline v. Amonett, 695 S.W.2d 802, 807 (Tex.App.--Amarillo 1985, no writ); Carpenter v. Wyatt Construction Co., 501 S.W.2d 748, 750 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.). Circle Y did not inform the trial judge of its predicament until the day after the jury w......
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2 books & journal articles
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    • James Publishing Practical Law Books Texas DTPA Forms & Practice
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    ...Life Ins. Co. v. Rutherford , 468 S.W.2d 535, 537 (Tex. Civ. App.—Houston [1st Dist.] no writ), §1.0.215 Carpenter v. Wyatt Constr. Co ., 501 S.W.2d 748 (Tex. Civ. App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.), §9.02 Carrow v. Bayliner Marine Corp ., 781 S.W.2d 691 (Tex. App.—Austin 19......
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    • March 31, 2016 discharged even if the juror testifies that he can set the bias aside and provide a fair trial. Carpenter v. Wyatt Constr. Co ., 501 S.W.2d 748 (Tex. Civ. App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.). Obviously, an employee of a party should be disqualified as a matter of law. Pres......

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