City of Hawkins v. E. B. Germany and Sons

• Decision Date: 15 February 1968
• Docket Number: No. 312,312
• Citation: 425 S.W.2d 23
• Parties: CITY OF HAWKINS, Appellant, v. E. B. GERMANY AND SONS et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 23

425 S.W.2d 23

CITY OF HAWKINS, Appellant, v. E. B. GERMANY AND SONS et al., Appellees.

No. 312.

Court of Civil Appeals of Texas Tyler.

Feb. 15, 1968.

Rehearing Denied March 14, 1968.

Charles H. Clark, Tyler, for appellant.

Thompson, Knight, Simmons & Bullion, Pinkney Grissom, George C. Chapman, Burford, Ryburn & Ford, Dallas, for appellees.

MOORE, Justice.

This is a suit for damages instituted by appellant, City of Hawkins, against appellees, E. B. Germany And Sons, G. H. Vaughn, Jr . and Jack C. Vaughn.

As grounds for its cause of action, appellant alleged that prior to 1961, the city owned and operated two water wells within the corporate limits of the City of Hawkins which wells served as the municipal water supply of the city and that appellees were the owners and operators of a certain oil and gas well situated in the City Limits of the City of Hawkins, known as the Minshew No. 1; that sometime during the year of 1961, gas and other hydrocarbons appeared in the city's two water wells, causing a pollution of the water, rendering same unfit for human consumption, and causing the city to have to resort to other sources for its water supply at great expense and damage to the city. Appellant further alleged that after the pollution occurred, it caused tests to be made on all the oil wells in the immediate areas surrounding the water wells, including the Minshew No. 1, to determine which wells, if any, were leaking and causing the pollution; that as a result of such tests, it was found that the Minshew No. 1 was leaking and appellees were requested to take immediate steps to correct same; that appellees delayed making repairs to correct the leak for some fifteen months, and as a result, the city was deprived of the use of its water wells for a period of approximately two and one-half years, causin the city to suffer considerable damage; that such damages were proximately caused by the negligence of appellees in (1) failing to test their well for leaks; and (2) permitting gas and other hydrocarbons to escape from the Minshew No. 1 and pollute the city's water wells. Appellees denied generally the allegations in appellant's petition and ffirmatively alleged that appellant's damages were not caused by any negligence on their part, but such damages, if any, were the result of acts and omissions of others, and in the alternative alleged that the damages were the result of an unavoidable accident.

Trial was before a jury. In response to the special issues as numbered in the court's charge, the jury made the following material findings: (1) that gas and other hydrocarbons escaped from the Minshew No. 1 and (2) polluted appellant's water wells; but (3) that appellees were not negligent in permitting the gas and other hydrocarbons to escape from their oil wells; (5) that appellees did not fail to test their oil well for leaks; and (8) that pollution of the city's water wells was the result of an unavoidable accident. Based upon the verdict, the trial court rendered judgment for appellees.

After its motion for new trial was overruled, appellant perfected this appeal and has attacked the judgment by five points of error. Since none of appellant's points attack the judgment as being unsupported by the evidence, a detailed discussion of the facts will not be necessary.

Under the first point, appellant contends that the trial court erred in sustaining appellees' motion to disqualify three members of the jury panel solely on the ground that they were resident, tax-paying citizens of the City of Hawkins. In connection with this point, it was stipulated that the population of the City of Hawkins was somewhere between eight hundred and one thousand, and that the city had between three hundred fifty and four hundred water meters. According to the pleadings, the city contended that the pollution affected the water supply of all residents of the city.

The record shows that at the conclusion of the voir dire examination, there were thirty jurors on the panel. Thereafter, appellees filed a motion to disqualify three members of the panel for cause. In connection with their motion, appellees alleged that in view of the evidence showing that each of the jurors in question was a resident, tax-paying citizen of the city, appellees believed that the financial interest of the three jurors was such that it could not help but weigh on their minds during the trial and thereby result in prejudice to the appellees. Over the objection of appellant, the court granted the motion and excused all three jurors . In this connection, however, the record shows that only two of said jurors, Moore and Kirkpatrick, were within the first 24 on the list and the third juror, Van Horn, was No. 27 on the list. Since juror Van Horn could not have been reached, the action of the court in excusing this juror would not be material under this point.

Article 2134, Vernon's Ann.Tex. Statutes, provides:

'The following persons shall be disqualified to serve as jurors in any particular case:

'2. Any person interested, directly or indirectly, in the subject matter of the suit.

'4. Any person who has a bias or prejudice in favor of or against either of the parties.'

In addition to such statutory disqualifications, the trial court has discretion to determine whether the juror is disqualified for some other cause not mentioned in the statute. Bennett v. Jackson, (Tex.Civ.App.) 172 S.W.2d 395; McDonald, Texas Civil Practice, Vol. 3, Sec. 11.11, p. 984.

The general rule is that the interest of a resident, tax-paying citizen of a city is too remote and contingent to render him disqualified to serve as a juror in a suit in which the city is a party. If, however, the interest in either case, even though indirect, was immediate, real and substantial, it would doubtless be sufficient to disqualify. Moore v. City of Dallas, (Tex.Civ.App.) 200 S.W. 870; City of Marshall v. McAllister, 18 Tex.Civ.App. 159, 43 S.W. 1043.

The ultimate question of whether a prospective juror is in fact disqualified by reason of interest, bias or prejudice or for some other cause, must depend upon the evidence. The record before us does not contain any of the testimony produced before the court upon voir dire examination, nor does the record show that appellant preserved the error complained of by way of a bill of exception. Without the testimony of the jurors on voir dire examination or a bill of exception, we cannot say that the trial court erred in impliedly finding that the jurors in question were disqualified. The court had an opportunity to see, hear and size up the jurors and was in a much better position than we to determine their qualification. McBroom v. Brown, (Tex.Civ.App.) 277 S.W.2d 310. We cannot assume or surmise that there was no evidence to support the trial court's finding. On the contrary, in the absence of any testimony produced on voir dire examination or a bill of exception, it must be conclusively presumed that there was sufficient evidence to support the trial court's finding. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683. Such finding is binding on this court and may not be disturbed on appeal. Bashrum v. Vinson, (Tex.Civ.App.) 330 S .W.2d 538; Woolam v. Central Power & Light Co., (Tex.Civ.App.) 211 S .W.2d 792.

While we believe appellant's failure to properly bring forward in proper manner the error complained of is determinative of the point, there is yet another reason why the point cannot be sustained. Appellant does not allege or attempt to demonstrate how any harm resulted by reason of the adverse ruling. It has long been the established rule in this state that even though the challenge for cause was improperly sustained, no reversible error is presented unless appellant can show he was denied a trial by a fair and impartial jury. Rule 434, Texas Rules of Civil Procedure; Galveston, H. & S.A. Ry. Co. v. Thornsberry, Tex., 17 S.W. 521; Woolam v. Central Power & Light Co., supra, citing cases; also see Hammon v. Texas & New Orleans Railroad Company, (Tex.Civ.App.) 382 S .W.2d 155. The record brought forward by appellant fails to show appellant objected to any juror on the panel. Since it was not shown that the city was forced to try the cause before an objectionable juror, it...