Colls v. Price's Creameries, 4840

• Decision Date: 28 November 1951
• Docket Number: No. 4840,4840
• Citation: 244 S.W.2d 900
• Parties: COLLS et al. v. PRICE'S CREAMERIES, Inc.
• Court: Texas Court of Appeals

Page 900

244 S.W.2d 900

COLLS et al. v. PRICE'S CREAMERIES, Inc.

No. 4840.

Court of Civil Appeals of Texas, El Paso.

Nov. 28, 1951.

Rehearing Denied Dec. 19, 1951.

Cunningham & Malone, El Paso, for appellant.

Kemp, Smith, Brown, Goggin & White and W. C. Snow, all of El Paso, for appellee.

McGILL, Justice.

This is an appeal from a judgment of the District Court of El Paso County, 41st Judicial District. Linda R. Colls, a minor approximately three years of age, suing by her next friend, Charles R. Colls, as plaintiff, sought to recover damages from Price's Creameries, Inc., defendant, for personal injuries received by her when she was struck by a milk truck owned by defendant and operated by its employee. The accident occurred on December 9, 1950, on Bliss Street near its intersection with Houston Street in the City of El Paso. Trial was to a jury and the cause submitted on special issues. On the jury's verdict answering certain questions the court rendered judgment that plaintiff take nothing and that defendant recover of her its costs. Plaintiff has duly perfected her appeal.

The parties will be referred to as they were designated in the trial court. Except as hereinafter mentioned, no reference to the pleadings is deemed necessary.

The jury answered: (3) that prior to the accident the brakes on defendant's truck were defective; (4) that they did not find that the defendant in the exercise of ordinary care should have discovered the defective condition of the brakes in time to hav avoided the accident; (5) that they did not find that the operation by defendant's driver of defendant's truck just prior to the accident with defective brakes was negligence; (7) that they did not find that the failure of the driver of defendant's truck just prior to the accident to sound the horn with which said truck was equipped was negligence. They did not answer question No. (9), which inquired whether they found from a preponderance of the evidence that the accident in question was not the result of an unavoidable accident; (10) that they did not find that the failure of Mrs. Charles R. Colls just prior to the accident to prevent her child, Linda R. Colls, from going into Bliss Street in the path of defendant's truck was the sole proximate cause of the accident, and (11) damages in the sum of $17,500.

Appellant has presented thirty points on which she seeks a reversal. Many of these points assert misconduct by the jury, the bailiff and the court, which entitle plaintiff to a new trial. We shall first consider these points.

The following is reflected by the plaintiff's bill of exception No. 1, as qualified by the court: The jury retired to consider their verdict at 11:30 A.M. April 13, 1951. After deliberating approximately an hour they had lunch and resumed their deliberations at about 1:30 P.M. About 4:30 P.M. they delivered to the Bailiff the following written communication:

'We are divided on question No. 9-Arguments have been going on for 2 1/2 hours. Should we leave this question unanswered and continue with the others?

'/s/ J, E, Davis, Jr., Foreman.'

The Bailiff delivered this commmunication to the Judge, who phoned counsel for both parties and counsel came to the judge's office and the court stated to them that he had received a written communication from the jury through the Bailiff, and showed the above note to them. At this time plaintiff's counsel objected to question No. 9 and the definition given in connection therewith, because there was no evidence of unavoidable accident and the definition was too restricted because limited to the acts of Linda R. Colls and defendant, whereas it should include Mrs. Colls or any person whether a party to the suit or not. These objections were presented to the court, were overruled, and plaintiff excepted. Thereafter, in reply to the written communication the court sent the following written instruction to the jury, through the Bailiff:

'Your communication inquiring 'We are divided on Question No. 9-Arguments have been going on for 2 1/2 hours. Should we leave this question unanswered and continue with the others? J. E. Davis, Jr., Foreman', received. In connection therewith you are instructed as follows: No. /s/ David E. Mulcahy, Judge.'

The jury was kept together through the night. At nine o'clock A.M. April 14, 1951, they delivered to the Bailiff the following written communication:

'Hon. Judge 41st District Court: After hours of sincere deliberation, it is the opinion of all the Jurors that we cannot come to a unanimous decision on question No. 9. / s/ J. E. Davis, Jr., Foreman.'

The Bailiff delivered this communication to the court, and the court prepared the following written instruction:

'Your communication received which is as follows: 'Hon. Judge 41st District Court: After hours of sincere deliberation it is the opinion of all of the Jurors that we can not come to a unanimous decision on Question No. 9.

'/s/ J. E. Davis, Jr., Foreman.'

'In connection therewith, you are instructed as follows: You will consider further of your verdict and answer such questions as you may be able to agree upon by unanimous vote and leave unanswered those questions upon which you cannot so agree.

'/s/ David E. Mulcahy,

'Judge.'

The court then phoned counsel for both parties, who came to the District Court room where in the absence of the jury the court informed counsel that the jury had written the court a note and that the court had prepared a written instruction to the jury in reply thereto. The court then showed counsel the above communication, and instruction in reply thereto, and informed counsel of his intention to give such instruction to the jury. In qualifying plaintiff's Bill of Exception, the court states:

'1. At the time the first written question of the Jury referred to was received from the Jury and the Answer thereto prepared by the Court, Attorneys for both Plaintiff and Defendants were asked whether they wanted the Jury brought into open court to be given the reply and attorneys for both parties expressly waived such requirement and agreed that the written instruction should be delivered by the Bailiff to the Jury without bringing the Jury into the Courtroom.

'2. When the Court received the second written question from the Jury, through the Bailiff, counsel on both sides were notified, and appeared in open Court. The communication from the Jury was shown to them, no objection was made to the manner in which the communication was received from the Jury or of the failure to have the Jury brought into open Court, Counsel for Defendant requested the Court to receive a partial verdict. Counsel for Plaintiff objected to receiving a partial verdict and to any instructions to the jury that would result in a partial verdict, and particularily objected to the Second instruction to the jury which authorized a partial verdict. Plaintiff was expressly allowed the opportunity to prepare a full bill of exceptions later, setting forth the reasons and grounds forming the basis of his exceptions. Counsel for Plaintiff requested leave to reargue the case before the Jury, which request was denied and Plaintiff excepted. Counsel for Plaintiff and Counsel for Defendant expressly waived bringing the jury into the Courtroom, and agreed that the Bailiff might deliver the written instruction to the foreman at the door of the Jury room. No motion for mistrial was made. The scope of Plaintiff's exceptions included but was limited to any objections which Plaintiff had to the content of the second communication from the Jury, and to the instruction of the Court to the Jury in response to same. * * *

'3. In the Court's main charge to the Jury the Court instructed the Jury as follows: 'In your deliberation if you require any further instructions from the Court, put your request in writing and give it to the Bailiff at the door of the Jury room, to be handed to the court.' Counsel for the Plaintiff took no exceptions to such instruction.

'4. At the time the second instruction was delivered to the jury the Jury had not answered Questions 9, 10, and 11, but had answered Questions 3, 4, 5 and 7.'

Based on the foregoing, Appellant asserts error which entitled her to a new trial because the jury, Bailiff and the Judge were guilty of misconduct and violated Texas Rules of Civil Procedure in that the jury delivered the first note to the Bailiff at about 4:30 P.M. on April 13, and the Bailiff delivered the note to the Judge and the Judge showed it to counsel for plaintiff and defendant, all in violation of Rules 283, 285 and 286, T.R.C.P., and for like reason the jury, the Bailiff and the Judge were guilty of misconduct and violated the rules with reference to the second note, which was delivered by the Jury to the Bailiff about 9 o'clock A.M. April 14, and by the Bailiff delivered to the Judge, and by the Judge shown to counsel.

Points are also made that the court erred in overruling plaintiff's objections to the Jury's second communication and the court's written instruction in reply thereto on April 14, 1951; and in refusing to permit additional argument on the additional written instruction given April 14, 1951, and in entering judgment on the verdict because it was incomplete.

From a careful reading of Rules 283, 285 and 286 it is at once apparent that the court's instruction in his main charge as to the procedure the jury should follow if they required further instruction, is a departure from Rules 285 and 286 and calls for a communication from the Jury prohibited by Rule 283. Plaintiff made no objection to this portion of the charge, nor as shown by the court's qualification to her bill of exception did she object to the manner in which either of the communications was received from the Jury or of the failure to have the Jury brought into open court to make the communications, as provided by Rules 285 and 286, nor did she object to the action of the court in showing the...