Carpenter v. Wyatt Const. Co.

• Decision Date: 31 October 1973
• Docket Number: No. 868,868
• Parties: Jo Ann CARPENTER, et vir, Appellants, v. WYATT CONSTRUCTION COMPANY et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 748

501 S.W.2d 748

Jo Ann CARPENTER, et vir, Appellants, v. WYATT CONSTRUCTION COMPANY et al., Appellees.

No. 868.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Oct. 31, 1973.

Rehearing Denied Nov. 21, 1973.

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

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

CURTISS BROWN, Justice.

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 selected, but before the jury...