Hobbs v. Slayton

• Decision Date: 04 March 1954
• Docket Number: No. 6682,6682
• Citation: 265 S.W.2d 838
• Parties: HOBBS et al. v. SLAYTON.
• Court: Texas Court of Appeals

Page 838

265 S.W.2d 838

HOBBS et al. v. SLAYTON.

No. 6682.

Court of Civil Appeals of Texas, Texarkana.

March 4, 1954.

Rehearing Denied March 25, 1954.

Strasburger, Price, Kelton, Miller & Martin, and James S. Grisham, Dallas, for appellants.

Lawrence & Lawrence, and F. Lee Lawrence, Tyler, for appellee.

FANNING, Justice.

This is a damage suit for personal injuries. Appellee S. C. Slayton while driving his automobile was struck from the rear by a 'jeep' automobile owned by appellant J. R. Hobbs and driven by appellant Ralph Pitts, employee of Hobbs, causing the car of appellee to swerve and strike the brick front of a grocery store, severely injuring appellee. Trial was to a jury, which answered the issues favorably to appellee and upon the verdict of the jury the court rendered judgment for appellee against appellants for $24,000 and costs. Appellants have appealed from this judgment.

Appellants contend that the trial court erred in refusing to permit them, in support of their motion for new trial charging misconduct of the jury in going to the scene of the accident for a personal examination during the trial, to offer the testimony of said twelve jurors, who were present in court and available as witnesses at the time of the hearing of the motion for a new trial. Appellants' original motion for new trial was filed June 9, 1952; and amended motion for new trial on June 26, 1952, and paragraph six thereof relative to jury misconduct, sworn to by one of appellants' attorneys, reads as follows:

'The court should grant these defendants a new trial because, during the deliberation by the jury and before a verdict was reached, one of the jurors stated in the jury room during the discussion that he could not understand from the testimony whether the distance that Ralph Pitts traveled from some particular point to the place of the collision was at a point starting from the center of the street or from the north said of the highway. Whereupon, another one of the jurors made this statement to the juror who was uncertain in the respect shown above: 'You should have done as I did, I did not understand the lay of the land very well myself but during the noon hour I went to Fry's Restaurant, which is located within close proximity of the Hobbs Equipment Company place of business and while out there I looked this situation over thoroughly beginning with the place on the north side of the highway where the car started across the north one-half of the highway and to the center and on down to where the accident occurred and took a look at the little brick building that the car was shoved into and satisfied myself as to the lay of the land.' Following this statement, the juror who was troubled about the testimony in question was satisfied and voted with the others the verdict which was returned. The statement by the juror who went out and inspected the premises was prejudicial and influenced the other juror to agree to the verdict which was returned in court and the conduct of said juror in going out and viewing the highway and the premises where the accident occurred was highly prejudicial to the rights of these defendants.'

The amended motion for new trial came on to be heard before the court on July 18, 1952; and on the same day and prior to the hearing appellee presented the following special exceptions:

'Plaintiff excepts to paragraph six of defendants' first amended motion for a new trial in that '(a) said allegations contained therein are too vague to apprise this plaintiff as to the issue of jury misconduct as set out therein. (b) Said motion wholly fails to set forth the name or names of the jurors who are alleged to have committed the said acts complained of or the name or names of the jurors who were present when said alleged statements were made and heard the same and relied thereon. (c) Said motion does not have the affidavits or copies of affidavits of any jurors attached in support of said alleged misconduct and said motion wholly fails to set forth any excuse for not attaching affidavits of one or more jurors in support of said allegations. (d) Said allegations in paragraph 6 are so vague as to merely constitute a fishing expedition on the issue of jury misconduct; consequently said motion and the said allegations of paragraph 6 are wholly insufficient in these respects. '" Appellants requested leave to insert the names of the jurors in the motion (but did not follow this up by tendering affidavits or written statements from any of the jurors), which request was denied by the court. There were no affidavits of any of the jurors attached to the motion; no written unsworn statements of the jurors attached thereto or tendered to the court, as in the case of Jones Lumber Company v. Murphy, 139 Tex. 478, 163 S.W.2d 644; no allegations in the motion to disclose a reasonable explanation or excuse for the failure to have such affidavits so exhibited and no affidavits tendered in this case such as in the case of Freedman Packing Co. v. Harris, Tex.Civ.App., 160 S.W.2d 130. The trial court sustained these special exceptions and dismissed the jurors. Appellants do not bring forward a formal bill of exception showing what these jurors would testify to, nor does the statement of facts in any way disclose what these jurors would testify to. The case of Nunn v. Daly, Tex.Civ.App., 150 S.W.2d 834, error dismissed, judgment correct, holds that an assignment that trial court erred in...