Gulf, C. & S. F. Ry. Co. v. Dickens

• Decision Date: 31 March 1909
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. DICKENS.

118 S.W. 612

GULF, C. & S. F. RY. CO. v. DICKENS.

Court of Civil Appeals of Texas.

March 31, 1909.

Appeal from District Court, Bell County; Jno. M. Furman, Judge.

Action by W. W. Dickens against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Terry, Cavin & Mills and A. H. Culwell, for appellant. A. L. Curtis and Winbaurn Pearce, for appellee.

FISHER, C. J.

This is a suit by appellee for the recovery of damages on account of personal injuries received while engaged in the service of appellant as a switchman at Temple, Tex. It is alleged that, while he was engaged in the service of switching cars, he was caused to fall under the train, by reason of which he received serious and permanent injuries. The negligence charged is that, while he was in the performance of his duty in coupling a car, his foot slipped into a hole which was negligently permitted to be and remain near the railway track, and that the railway company failed to furnish him a safe place at which to work. Appellant answered by general and special exceptions, general denial, pleas of contributory negligence, and assumed risk. Verdict and judgment below were in appellee's favor against the railway company for the sum of $37,500.

Appellant's twenty-seventh and twenty-eighth assignments of error are to the effect that the trial court erred in refusing to grant appellant's motion for a new trial on account of the fact that one B. T. Wynn, who was a juror at the trial and participated in finding and returning the verdict against the appellant, was not a fair and impartial juror, in that he entertained a bias in favor of the plaintiff, and that he had, prior to the trial, expressed an opinion about the merits of the case, wherein he had substantially stated to one W. P. Cox and J. L. Durden that Dickens ought to recover the amount he had sued for, to wit, $50,000 or $60,000; that the juror on his voir dire was especially interrogated as to the fact whether he entertained any prejudice or bias for or against either of the parties to the suit, and whether he had entertained or had expressed an opinion as to the merits, all of which he answered in the negative; that neither the appellant nor any of its attorneys had any notice or knowledge of the fact that the juror was not a fair and impartial juror, and that he had had the conversation with Cox and Durden as stated until after the trial; that, if they had known at the time of his examination touching his service and qualification as a juror that he had so expressed himself in favor of the plaintiff, he would have been challenged for cause, and, if such challenge had not been sustained, they would have peremptorily challenged him. Therefore the appellant contends that the juror Wynn was not competent and qualified, and that he was biased in favor of the plaintiff and prejudiced against the defendant, and that he went into the jury box with his mind made up that the plaintiff was entitled to recover.

It appears from the bill of exceptions that the evidence introduced upon the disposition of this question is substantially as follows: Wynn, the juror, testified: That he did not know anything about the merits of the case before he was taken on the jury. That he had heard that Dickens was run over and got cut up, and so stated in his examination before he was accepted, and he stated in his examination he did not have any opinion about the case, neither did he have any bias in favor of or prejudice against the railway company, nor had he any such bias or prejudice at that time. He knew Dickens when he saw him. That he had no opinion when he was taken as a juror. That he was not on the regular jury, but was picked up on the morning the case went to trial by the deputy sheriff. That he lived in Temple. That he knew Mr. W. P. Cox. That he had never had any conversation with Mr. Cox, but had had with the other man. This other man referred to was John L. Durden. That it was not a fact that on or about Sunday, January 26th, about a week before the case was tried, that he had a conversation with one or both of these parties, and he goes on and expressly denies that he had a conversation with either Cox or Durden near the Harvey House in the town of Temple about a week before the trial. Cox testified that he lived in Temple, and knew the juror Wynn, and stated that Wynn, in a conversation with him and Durden, asked the question how much Dickens was suing for, and he replied about $50,000 or $60,000. Wynn said that he thought he ought to have it. The case was discussed, and Wynn asked the question how it happened. Wynn expressed sympathy for Dickens. Durden undertook to tell him all he knew about it, and detailed how the accident occurred. This was the conversation that occurred near the Harvey House about a week before the trial. The evidence of Durden is substantially to the same effect as that of Cox. All of these parties, it seems, lived in Temple, where the accident happened, and where the plaintiff resided. It also appears that the juror Wynn on his voir dire was especially interrogated with reference to his bias and prejudice and his opinion as to the merits of the case.

The evidence further shows that the conversation referred to was not known to the appellant or its attorneys at the time of the formation of the jury, and was not discovered until after the trial. The bill of exceptions further states that the preponderance of the evidence showed that this conversation had taken place, and that that was the view of the court, and that it was the conclusion of the court that neither the defendant company nor any of its officers or attorneys in charge of the case knew of the conversation until after the conclusion of the trial; that the court, however, was further of the opinion that the conversation and statements there made by Wynn were not of such a character as disqualified him from jury service in this case; that the court was of the opinion that the defendant had not shown that the juror was biased in favor of the plaintiff or prejudiced against the defendant at the time he qualified, and that he had such an opinion relative to the merits of the case as would disqualify him from performing the service of a juror at the time of the trial of the case; that the fact that he had expressed the opinion to Cox and Durden one week before the trial did not show that he was disqualified from jury service herein or entertained the same views relative to this case at the time of trial hereof as he expressed to Cox and Durden. The views of the court upon this subject are possibly more tersely stated in this explanation which he appends to the bill: "I cannot say that the language imputed to the court is the exact language used by it from the bench, but it in effect is the meaning of what was intended. I concluded that, giving all parties credit for intending to be truthful, I would rather believe that the conversation of Wynn with Cox and Durden was so unimportant that it had escaped his memory than to believe that the evidence of any witness was false; and, as Wynn on his voir dire and as a witness in this hearing has testified he had no opinion as to the merits, I could not hold such conversation with Cox and Durden would overcome his sworn testimony and his sworn answers on his voir dire. Hence I find he was a competent juror." This statement of the court is to the effect that the conversation between Cox and Durden and Wynn, did occur as testified to by the former, although denied by the latter, but he undertakes to avoid its effect as showing the expression of the opinion of the juror as to the amount plaintiff was entitled to by the statement that the question was unimportant, and had probably escaped the recollection of the juror, and that his statement on his voir dire disclaiming any opinion should be given controlling effect in overcoming any statement he had previously made indicating he was not fair and impartial.

However difficult the task may be to produce satisfactory evidence of the unfairness of a juror, and however reluctant the courts may be to disturb verdicts on such alleged grounds, we have no hesitancy in this instance in reaching the conclusion that the proof is ample so far as concerns this juror to establish the fact that the appellant has not had a trial before a fair and impartial jury, a right accorded all litigants, even though one be a railroad corporation. The record discloses on other branches of the motion for new trial, the circulation among the jurors in their retirement of a statement by this juror to the effect that he had heard it stated that the railway company had offered the appellee a considerable sum in settlement, which fact the bill of exception shows was not true, nor was there any evidence upon that subject. This is merely referred to as having some bearing on the question we are now considering; that is, whether the juror was impartial, and as a fact having some weight to be considered on this branch of the motion in determining his partisanship. The trial court, while finding that the conversation was as testified to by Cox and Durden, concluded that it was so unimportant that he had rather believe that it had escaped his (Wynn's) memory than to believe that his evidence on his voir dire was false, wherein he stated that he had no opinion as to the merits. This is throwing over the juror a mantle of charity that he has no desire to wear, for he did not claim that he had forgotten anything, nor that anything that was said was unimportant, but he denied in toto the conversation, and says that no such conversation occurred, although the court had deliberately, after hearing all the evidence and giving him an opportunity to testify which he availed himself of, found that such conversation did occur. There is nothing to indicate that he has a poor recollection of events, and in his...