City of Dallas v. Mitchell, 2695.

• Decision Date: 17 October 1946
• Docket Number: No. 2695.,2695.
• Citation: 197 S.W.2d 586
• Parties: CITY OF DALLAS v. MITCHELL et ux.
• Court: Texas Court of Appeals

197 S.W.2d 586

CITY OF DALLAS v. MITCHELL et ux.

No. 2695.

Court of Civil Appeals of Texas. Waco.

October 17, 1946.

Rehearing Denied November 27, 1946.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Action by Rufus Mitchell and wife against the City of Dallas for diminution in the value of plaintiff's automobile and injuries received by plaintiff wife when the automobile hit a manhole in a city street. Judgment for plaintiffs, and defendant appeals.

Affirmed.

H. P. Kucera, City Atty., and A. J. Thuss, Jr., and W. K. Chapman, Asst. City Attys., all of Dallas, for appellant.

White & Yarborough and Thos. H. Howard, all of Dallas, for appellees.

TIREY, Justice.

Rufus Mitchell and wife, Cellie Mitchell, brought this suit against the City of Dallas to recover damages for diminution in the value of their automobile and for injuries received by Cellie Mitchell when their automobile, driven by their son Wesley, hit a manhole which they alleged was permitted to exist above the grade of Spring Avenue, a street in the city of Dallas. The jury answered all the issues submitted to it favorably to the plaintiffs and fixed the loss on the car at $125 and Cellie Mitchell's damages in the sum of $1375. The court entered judgment in favor of plaintiffs against the City of Dallas for the sum of $1500. The City of Dallas duly perfected its appeal and the cause was transferred to this court by order of the Supreme Court.

Points 1, 2 and 3 assail the action of the court in refusing it a new trial substantially because after the trial it was shown that the City was deprived of a trial by a fair jury of twelve men in that (a) the judgment against it was based upon findings dictated by a biased and unfair attitude of resentment held by juror Hundley growing out of what he believed to be unfair treatment at the hands of Dallas policemen by arresting him and not arresting a third party with whom the juror was involved in a controversy, and because the juror Hundley, conscious of his bias against the City, shielded his unfair attitude in that he made untruthful answers on voir dire and stated he had no feeling one way or another and never had had a controversy with the defendant, and (b) because the juror McCormack, at the time he served on the jury, was plaintiff in a case involving his personal injuries. We overrule each of these contentions.

On the motion for new trial counsel for the City took the witness stand and testified in part: "I remember specifically asking Mr. McCormack whether he had been involved in any litigation of this character. I also remember specifically asking the question of Mr. E. Estes Hundley whether or not he ever had any controversy or conflict with the City of Dallas." McCormack was tendered as a witness by the City and he testified in part to the effect that when he was taken on the jury in February, 1946, he was limping, and that Mr. Thuss did not ask him whether he had any law suit pending or not. It does appear from the juror's testimony that he had a suit pending against the Lone Star Gas Company for personal injuries sustained by him while he was their employee at the time he was accepted for jury service, but he testified that he was not asked about this matter, and that he gave truthful answers to all the questions counsel asked him touching his qualifications for jury service. Appellant also tendered Hundley as a witness. He testified in part:

"Q. Now, Mr. Hundley, you remember I asked you on voir dire examination whether or not you ever had any conflict or controversy with the City of Dallas? A. You didn't ask me that question.

"Q. You say I didn't ask you that? A. If you did I don't remember it."

It appears that Hundley was injured in a traffic accident in the City of Dallas in February, 1944, at which time a boy "ran through a red light riding a bicycle while the traffic was stopped and I (Hundley) was walking against a green light," and as a result of the accident Hundley was arrested by a policeman and carried to the city hall. The boy was not arrested. He further testified in part:

"Q. You didn't, as a result of that incident that Mr. Thuss asked you about, you didn't have any prejudice against the City of Dallas? A. Not in the world, never had anything against the City of Dallas in my life. I have been living here since 1919. Nothing against the City.

"Q. When you were taken on this jury did you have any prejudice against the City of Dallas? A. No sir.

"Q. Did you have any prejudice against the City of Dallas that affected your verdict in this case? A. No."

No record was made of the questions propounded to the jurors McCormack and Hundley touching their qualifications for jury service.

We have considered very carefully all of the testimony adduced on motion for new trial and we think it tendered only an issue of fact to the trial court as to whether or not the jurors Hundley and McCormack failed to answer truthfully the questions propounded to them touching their qualifications for jury service, and whether or not said jurors had such bias or prejudice that it affected their verdict. These questions the trial court impliedly found against appellant's contention. We think the rule announced by our Supreme Court in City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989, points 1-3, page 992, as to misconduct of the jury is applicable to the situation here presented. The court said: "* * * where there is a real conflict of evidence touching the question as to whether or not misconduct of a jury actually occurred, the finding, express or implied, of the trial court on such question is final." See also Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372.

Point 5 is: "The attorney representing the appellees indulged in improper argument to the jury, in that he referred to the poverty of the plaintiffs, and to the inability of the plaintiffs to match dollars with the defendant, which...