Dallas Power & Light Co. v. Edwards

• Decision Date: 22 November 1919
• Docket Number: (No. 8226.)
• Citation: 216 S.W. 910
• Parties: DALLAS POWER & LIGHT CO. v. EDWARDS et al.
• Court: Texas Court of Appeals

216 S.W. 910

DALLAS POWER & LIGHT CO. v. EDWARDS et al.

(No. 8226.)

Court of Civil Appeals of Texas. Dallas.

November 22, 1919.

Rehearing Denied December 20, 1919.

Appeal from Dallas County Court; T. A. Work, Judge.

Condemnation proceeding by the Dallas Power & Light Company against Walker G. Edwards and others. From judgment rendered, the company appeals. Affirmed.

Templeton, Beall, Williams & Callaway, of Dallas, for appellant.

Cockwell, Gray, McBride & O'Donnell, of Dallas, for appellees.

RASBURY, J.

This is a proceeding by appellant in the exercise of the right of eminent domain possessed by it to condemn to its use a plat of ground 25 feet square out of an 8-acre tract owned by appellees upon which to construct a steel tower, from which to string its wires for the transmission of electricity, and to acquire an easement over and across the entire tract for its wires. The proceeding was referred in the usual way to commissioners who reported. The report was objected to by the appellees on the ground that the amount awarded for the land and easement was inadequate. The issue of the amount of damages was in turn referred to a jury, which returned a verdict for $500. Judgment followed the verdict.

The matters presented for review on appeal are not contained in the motion for a new trial, but are reflected in a bill of exceptions taken after the court had overruled the motion for a new trial and the appellant had given notice of appeal to this court. The bill disclosesbriefly and in substance the following facts: L. O. Pyron was among the jurors who sat in the trial of the case, and, in answer to questions propounded by counsel for appellant, under oath denied any knowledge of the facts involved in the issue to be tried or any bias or prejudice for or against either party, and pledged himself, if chosen, to fairly and impartially try the issues on the evidence adduced and the charge of the court. Relying upon such statements and believing the juror to be fair and impartial, counsel accepted him. Upon the hearing of appellant's motion for a new trial, it was developed that the juror Pyron, during the deliberations of the jury and before a verdict had been reached, in the presence and hearing of the other jurors, stated:

"That he had been authorized by another person to offer one Woods, the owner of some overflow lands some two miles south of the city of Dallas, $750 per acre for a strip of the same, but had never submitted said offer to Woods; and that if he succeeded in buying the same he was to be allowed to use a part of it as a cow pasture in connection with his dairy."

H. D. Haskins, also a juror, testified that he heard the statement made by Pyron, and that it probably influenced him in determining the amount of damages to be awarded, inasmuch as Pyron was older than he and had had more experience in dealing in lands. Haskins further testified that he was originally in favor of awarding $250 in damages, but finally agreed to $500, to which all the other jurors assented, and that he rendered such verdict upon the evidence given by the witnesses and the law given by the court. Another juror, W. D. Davis, testified that he heard Pyron make the statement detailed, but that it did not influence him, and that he was governed solely by the evidence given by the witnesses and the law given by the court.

As indicated, the forgoing facts were not contained in appellant's motion for a new trial, but were developed upon the hearing of that motion while the jurors were being examined upon other issues raised in the motion and was the first time that counsel for appellant was cognizant of the statement of the juror Pyron. The hearing on the motion at which said facts were elicited commenced at 11 o'clock a. m. and continued until 12 o'clock m., at which time the court passed the motion until the following day at 11 o'clock a. m., at which time further argument was heard and the motion overruled. At about 3 o'clock p. m. of the same day, in the absence of appellees' attorneys and after the court had noted appellant's appeal and granted it 90 days in which to make up statement of facts and bills of exceptions, appellant prepared and presented another motion for a new trial alleging gross misconduct on the part of the jury; the gravamen of the charge being the receiving and considering of the statement of the juror Pyron already detailed. The motion was presented to the judge of the trial court, who refused to allow it to be filed and refused to consider same, on the ground that it was the last day of the term and appellees' attorney was not present, and that the motion would probably be overruled, but that he would file same if agreeable to appellees' attorney, but would not do so in his absence or without notice to him....