Connor v. Heard & Heard

• Decision Date: 13 June 1951
• Docket Number: No. 12191,12191
• Citation: 242 S.W.2d 205
• Parties: CONNOR v. HEARD & HEARD, Inc.
• Court: Texas Court of Appeals

Page 205

242 S.W.2d 205

CONNOR v. HEARD & HEARD, Inc.

No. 12191.

Court of Civil Appeals of Texas, San Antonio.

June 13, 1951.

Rehearing Denied Sept. 19, 1951.

Lyman, Pittman & Schraub, Corpus Christi, for appellant.

Kemp, Lewright, Dyer & Sorrell, Corpus Christi, for appellee.

NORVELL, Justice.

In this case, plaintiff's automobile after having been allegedly forced off the road by defendant's truck collided with a culvert. Judgment was rendered that the plaintiff, John R. Connor, take nothing against the defendant, Heard & Heard, Inc. The jury found the plaintiff guilty of contributory negligence.

The collision took place on the 20th day of October, 1947, at approximately 10:40 p. m. on the Corpus Christi-Robstown Road, a four-lane highway (No. 44) connecting the two cities. The two lanes of the southern portion of the road are used by east-bound traffic going toward Corpus Christi, while the northernmost lanes carry the west-bound traffic going toward Robstown. The two sets of lanes are divided by a borrow ditch. Both the tractor-trailer truck owned by appellee, Heard & Heard, Inc., and being operated by James Lee Stewart, and the automobile being driven by plaintiff were traveling in an easterly direction toward Corpus Christi, when the collision occurred.

The jury found, among other things, that Stewart, the truck driver, suddenly changed the course of his vehicle from the right-hand lane to the left-hand lane without giving a warning or signal of such intention, and that he failed to determine whether any other vehicle was passing or preparing to pass his truck before he turned or drove into the left lane of the highway. The jury also found that plaintiff, John R. Connor, was operating his automobile at a rate of speed in excess of fifty-five miles per hour immediately before the collision took place, and that he failed to have his automobile under proper control at such time. The jury further found that the acts or omissions mentioned constituted negligence and were proximate causes of plaintiff's automobile colliding with a culvert located in the area separating the east-bound and west-bound lanes of the highway.

By his first point John R. Connor, as appellant, asserts that this case should be reversed because of improper argument to the jury. The argument complained of was made by the attorney for the appellee and was as follows: 'When you reach 29, 30, 31, 32, 33 and 34 (appellee's contributory negligence issues) there is not any way to answer those under the facts of this case other than 'Yes.' * * * And I submit to you gentlemen, and beg and plead with you, when you come out into the jury room and get to the questions 29 to 34, give them careful consideration, and if somebody speaks up and says, 'Oh well, I think he ought to have something,' and the Court warns you to disregard that in giving your verdict, and say to him 'We took an oath,' and look him in the eye, and (say) 'We said that if speed was one of the causes of this accident that we would not hesitate to so say.''

No objection was made to this argument at the time it was made and it is asserted here that the argument was so prejudicial that it could not have been cured by an instruction of the court.

We do not regard the argument as being improper. It was asserted that under the facts of the case certain questions should have been answered 'Yes,' and that the jury should not answer the questions in such a way as to render the verdict for the plaintiff regardless of the evidence. The jurymen were reminded of their oaths and it was urged that if they believed that speed was one of the causes of the accident they should say so by their verdict. It is not improper to contend that under the court's charge the evidence requires that affirmative or negative answers be returned to certain issues. We overrule appellant's first point. Dallas Railway & Terminal Co. v. Bishop, Tex.Civ.App., 203 S.W.2d 651; Yellow Cab Co. v. Treadwell, Tex.Civ.App., 87 S.W.2d 276; Texas Life Ins. Co. v. Plunkett, Tex.Civ.App., 75 S.W.2d 313.

By his second point appellant asserts that the court erred in excluding the testimony of the witness Otis B. Wilson and others, to the effect that Stewart, the truck driver, had stated in their presence, some time after the wreck occurred, that he had dozed off or fallen asleep immediately before the collision took place. The theory advanced by appellant seems to be that such testimony constituted a part of the res gestae.

It seems to us that the exclusion of the proffered testimony, even if erroneous, was clearly harmless. As above pointed out, the jury found that Stewart changed the course of his truck 'from the right-hand lane to the left-hand lane without giving any warning or signal of such intention before changing the course of said truck.' The jury also found that this action constituted negligence and was a proximate cause of the collision. Upon these findings appellant would have been entitled to a judgment except for the jury's answers to the contributory negligence issues. The court submitted an issue inquiring as to whether or not Stewart dozed or fell asleep while operating the truck shortly before the collision. The jury answered this question in the negative. However, we think this issue was evidentiary rather than controlling. The controlling issue was whether or not the driver had changed the course of his truck from the right-hand lane to the left-hand lane without having given a proper warning or signal. This issue was answered in accordance with appellant's contention and liability of the appellee was avoided only by the finding that the appellant was contributorily negligent. The excluded evidence obviously has no bearing upon these later issues. We hold that appellant's second point does not present a reversible error.

By his third point appellant contends that the judgment must be reversed because of an alleged unauthorized communication between the bailiff and the jury. It appears that the judge with the consent of counsel for both parties had sent the bailiff to the jury room to ascertain approximately how long it would be before the jury returned their verdict. At that time, the jury had two issues to answer and one or more of the jurymen stated to the bailiff that they might 'have a hung jury.' One of the jurymen then asked if the bailiff would turn the jury loose if it was a hung jury and the bailiff replied that he had no right to turn the jury loose as that was a matter to be passed upon by the judge. Another juror then asked about how long the judge could keep the jury together, and the bailiff replied that the judge could keep the jury as long as he wanted to, as that was a matter which was 'up to the judge.'

Rule 283, Texas Rules of Civil Procedure, provides that, 'The officer in charge of the jury shall not make nor permit any communication to be made to them, except to inquire if they have agreed upon a verdict, unless by order of the court; and he shall not before their verdict is rendered communicate to any person the state of their deliberation or the verdict agreed upon.'

Appellant contends that the above rule was violated and that a reversal must follow. He cites Texas and Pacific Ry. Co. v. Hancock, Tex.Civ.App., 59 S.W.2d 313, 318, wr. ref. (decided in 1933). That case holds that a violation of Article 2195, from which Rule 283 was taken, constitutes 'reversible error regardless of the question whether or not injury resulted therefrom to the losing party.'

This rule, however, was expressly changed by the adoption of Rule 327, R.C.P., relating to misconduct of...