Houston Belt & Terminal Ry. Co. v. Burmester

• Decision Date: 21 November 1957
• Docket Number: No. 13041,13041
• Citation: 309 S.W.2d 271
• Court: Texas Court of Appeals
• Parties: HOUSTON BELT & TERMINAL RAILWAY COMPANY et al., Appellants, v. Kurt BURMESTER, Appellee.

Page 271

309 S.W.2d 271

HOUSTON BELT & TERMINAL RAILWAY COMPANY et al., Appellants, v. Kurt BURMESTER, Appellee.

No. 13041.

Court of Civil Appeals of Texas, Houston.

Nov. 21, 1957.

Supplemental Opinion Dec. 5, 1957.

Rehearings Denied Jan. 30, 1958.

Fulbright, Crooker, Freeman, Bates & Jaworski, and M .S. McCorquodale and Quentin Bates, Houston, for appellant Houston Belt and Terminal Ry. Co.

Chilton Bryan and E. H. Patton, Jr., Houston, for appellants James W. Maxcey, D. D. Danner and Danner's Marine Guard Service.

Eastham & Dale and Clarence S. Eastham, Houston, and Lockhart, Watson & Peterson, and Edward W. Watson, Galveston, for appellant Marina Mercante Nicaraguense, S. A.

John L. Hill and W. James Kronzer, Houston, Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellee.

WOODRUFF, Justice.

This is a personal injury suit instituted by the appellee, Kurt Burmester, against the appellants, Houston Belt & Terminal Railway Company, James W. Maxcey, D. D. Danner, and Danner's Marine Guard Service, a Partnership, in which Marina Mercante Nicaraguense, S. A., intervened. As suggested by counsel, the appellants and intervenor, for the sake of brevity, will be referred to hereafter as Belt, Danner, and Intervenor.

Appellee, Kurt Burmester, a German national, sought a recovery of damages totaling $213,500 accruing to him by reason of personal injuries sustained by him on December 23, 1954, while he was riding in an automobile owned by Danner and being driven by an employee, Lawrence Gregg, when it collided with an engine belonging to Belt and being operated by its employees. No claim was made by any party that appellee was in any wise contributorily negligent.

In response to 46 special issues, the jury returned a verdict finding Belt and Danner jointly guilty of several acts of negligence proximately causing the collision, and fixed damages for physical pain, mental anguish and diminished earning capacity both past and future, in the sum of $160,000. In addition thereto, in response to other appropriate issues, the jury found damages accruing to appellee in the sum of $8,847 for past hospital bills, $350 for a doctor's bill, and $10,000 for future medical and hospital expenses. Appellee having remitted $1,250.95 in connection with the accrued hospital bills, and $4,550 on the future medical and hospital expenses, the trial court on January 4, 1956, entered judgment on the verdict in behalf of appellee for a net amount of $173,396.05 against Belt and Danner jointly and severally, and further decreed that intervenor take nothing.

Thereafter, on January 20, 1956, the trial court made findings of fact that intervenor had paid medical, hospital, doctor bills, and reasonable maintenance for appellee Burmester in the total sum of $8,190 for which it had not been reimbursed. A finding was also made that such charges were reasonable and necessarily incurred by reason of the injuries sustained by Burmester and he would be in need of future medical, hospital and doctor bills as appeared in the verdict.

Motions for new trial were duly filed by Belt, Danner, and Intervenor, all of which were presented and overruled, notice of appeal given and an appeal has been duly perfected by each of them complaining of the trial court's action in rendering the judgment and in failing to grant appellants' motions for new trial.

Appellants, Belt and Danner, by appropriate points of error complain that the failure of the juror, Marshall L. Elliott, to disclose on voir dire examination in answer to questions propounded to the jury panel by the appellee's and appellants' counsel, that he had been the plaintiff in a workmen's compensation suit and had filed another claim for workmen's compensation benefits, was misconduct which entitled them to a new trial.

The testimony which was offered in connection with the presentation of their motion for new trial showed that more than five years before this trial the juror Elliott had filed a compensation claim while working for Austin Bros. and received $3,000 in settlement thereof on July 10, 1951. He was represented by Mr. Albert P. Jones, of the firm of Helm & Jones, and at that time appellee's counsel were associated with that firm. It is undisputed, however, that juror Elliott did not know either of appellee's attorneys, nor did they know him. Nor is it disputed that Elliott had also collected $50 on two previous claims without being represented by counsel.

Appellants contend that the mere fact that the juror did not act in bad faith, or that he did not intend to mislead anyone by withholding such information is not material. It is the concealment that is material, so they contend, because an uncertainty as to what effect such claims might have had upon him was thereby created and counsel for appellants would not have taken Elliott on the jury if they had known of his prior claims. Thus, they conclude, the materiality of the failure of the juror to answer the question 'would seem undisputed.' In support of their position, appellants rely upon Traders & General Insurance Company v. Cossman, Tex.Civ.App., 212 S.W.2d 865; Dallas Railway & Terminal Company v. Kurth, Tex.Civ.App., 247 S.W.2d 930, writ ref., n. r. e.; and especially upon Texas Employers' Ins. Ass'n v. Wade, Tex.Civ.App., 197 S.W.2d 203, 210 writ ref., n. r. e. In the last case cited this Court, in a somewhat similar situation, reasoned that, 'the mere fact that the juror did not act in bad faith is not the question to be determined in a case of this character. The question is whether a proper tribunal was established, and not whether an improperly established tribunal acted fairly.' Not being able to measure with any degree of certainty the effect the prior claims of the juror had had upon his state of mind or in what way it might have affected him as a juror, it was further held that, 'Since this uncertainty exists' the cause should be reversed and remanded for a new trial. This decision was handed down October 24, 1946, and the Cossman and Kurth cases followed in 1948 and 1952, respectively.

In Childers v. Texas Employers' Insurance Ass'n, 154 Tex. 88, 273 S.W.2d 587, where a juror during his voir dire examination forgot about a hernia claim for which he had received compensation in the sum of $400 and doctor bills eleven years prior to the date of the trial in which he was taken as a juror and, therefore, failed to disclose this fact to the appellant's attorneys upon voir dire examination, it was held that such failure to disclose was not the test to be applied unless the evidence showed that the concealment of such fact resulted in probable injury to the complaining party. The references cited in support of this ruling were Rules 327, 434, and 503, Texas Rules of Civil Procedure. In this connection mention should be made of the fact that Rule 327 was amended effective January 1, 1955, wherein the clause, 'or that a juror gave an erroneous or incorrect answer on voir dire examination,' was inserted.

It should also be observed that the only cases referred to by style in the Childers case were Traders & General Insurance Company v. Cossman, supra; Texas Employers' Insurance Ass'n v. Wade, supra; and Dallas Railway & Terminal Company v. Kurth, supra. The Supreme Court, in reversing the Court of Civil Appeals, cited these cases as being the authorities upon which the Court of Civil Appeals had relied in rendering its opinion, 269 S.W.2d 463.

Therefore, the rule established by the three above mentioned cases to the effect that if uncertainty existed as the result of the failure of a juror to make a disclosure of material information when questioned on voir dire examination the complaining party was thereby entitled to a new trial because of having been deprived of a trial before a properly established tribunal, was overruled by the opinion of the Supreme Court in Childers v. Texas Employers' Insurance Ass'n, supra.

This Court has heretofore recognized this fact in Thompson v. Quarles, 279 S.W.2d 321, 326, wherein it was said:

'We are governed by Childers v. Texas Employers' Insurance Association, 154 Tex. 88, 273 S.W.2d 587, 588, departing from the contrasting rule announced in Texas Employer's Ins. Ass'n v. Wade, Tex.Civ.App., 197 S.W.2d 203; Traders & General Ins. Co. v. Cossman, Tex.Civ.App., 212 S.W.2d 865; and Dallas Ry. & Terminal Co. v. Kurth, Tex.Civ.App., 247 S.W.2d 930, and holding that under Rules 327, 434, and 503, T.R.C.P., 'The failure of the juror on his voir dire examination to disclose information that he had suffered previous injuries is not the test * * *, unless the evidence shows that he concealed the fact of previous injury * * *, and that such action resulted in probable injury * * *'.'

We, therefore, must pass to the material inquiry as to whether or not the appellants have shown that juror Elliott's failure to answer the questions concerning prior injuries resulted in probable injury to appellants.

The testimony on the motion for new trial showed that the juror, Marshall L. Elliott, was 49, years of age, married, and the father of 5 children. He had a ninth grade education and had been a structural steel worker for more than 20 years. The company where he worked did not pay for his time while he was on jury duty and, therefore, he had not wanted to serve as a juror. He testified that he sat on the third row of seats during the voir dire examination and that each time counsel asked questions about prior claims he raised his hand and kept it raised for a considerable period of time. Another prospective juror, Mrs. I. N. Tower, who sat on his right, corroborated his testimony. She said he held it up a long time; it might have been twenty minutes, and that he had his hand up three different times. She also said that he put his hand up when the question about law suits and personal injuries was asked by Mr. Hill (appellee's counsel) and once when questions were being asked by one of...