Houston & T. C. Ry. Co. v. Terrell

• Decision Date: 10 February 1888
• Citation: 7 S.W. 670
• Parties: HOUSTON & T. C. RY. CO. v. TERRELL.
• Court: Texas Supreme Court

7 S.W. 670

HOUSTON & T. C. RY. CO. v. TERRELL.

Supreme Court of Texas.

February 10, 1888.

Appeal from district court, Grimes county; BENTON RANDOLPH, Judge.

This was an action by the appellee, John B. Terrell, against the Houston & Texas Central Railway Company, appellant, to recover damages for personal injuries, and resulted in a verdict and judgment for appellee.

O. T. Holt, for appellant. Hutchison & Carrington, for appellee.

GAINES, J.

This suit was brought by appellee against appellant, to recover damages for personal injuries, and resulted in a verdict and judgment for appellee. What purported to be the statement of facts found in the record has been stricken out on motion, and therefore many of the assignments of error cannot be considered. Before the jury were impaneled, one of the jurors for the week announced upon his voir dire that he was a brother-in-law to plaintiff, — "that they had married sisters." He was challenged for cause, and held a competent juror by the court, and this ruling is the ground of the first assignment of error. The names of the jurors who sat upon the trial of the cause are shown in the judgment, and his is not among them. It does not appear by the bill of exceptions that defendant exhausted its challenges, however, and the action of the court, if erroneous, is not a ground for the reversal of the judgment. Johnson v. State, 27 Tex. 758; Burrell v. State, 18 Tex. 713. We do not pass upon the question whether the plaintiff and the juror were related by affinity or not. The court held they were not. Seemingly upon good authority, a contrary doctrine was expressly decided by the supreme court of New York. Foot v. Morgan, 1 Hill, 654. It is to be remarked further that the damages recoverable in the case are the community property of the plaintiff and his wife, (Gallagher v. Bowie, 66 Tex. 265; Ezell v. Dodson, 60 Tex. 331;) and that in such a case this court has decided that the wife, though not a nominal party, is substantially a party to the suit, (Simpson v. Brotherton, 62 Tex. 170.) If both the wives were living at the time of the trial, (a fact not apparent from the bill of exceptions), the juror was certainly disqualified.

After the parties had announced themselves ready for trial, counsel for the defendant asked the jurors "if they knew anything about the facts of the case;" and again, "if any of them had made up their minds about the case." These questions were severally objected to by the counsel for the plaintiff on the ground "that the statute allowed no such question;" and the objection was sustained by the court. A bill of exceptions was taken to the ruling, and it is also assigned as error. Before proceeding to pass upon the right of appellant to make these inquiries, it may be well to dispose of certain questions raised by counsel for appellee in their brief. They now insist that the questions were not propounded at the proper stage of the proceeding, and cite us to articles 3089 and 3094, Rev. St., in support of their position. From these articles it evidently appears that it was contemplated that the challenges to the jurors for cause should be made after their names were drawn by the clerk, and the lists delivered to the parties. But if the provision as to time be mandatory, we do not perceive that it is a matter so essential or important that it could not be waived by the parties. If the objection had been that the questions were prematurely asked, and the court had sustained the objection upon this ground, we might not hold that appellant could now complain. But the bill of exceptions shows that the only objection was that which has been previously stated, namely, "that the statute allowed no such question." It also appears that the judge signed the bill with this modification: "Given with the statement that the counsel for plaintiff objected to the question on the ground that the questions and causes for challenge which were being inquired into should be confined to those laid down in the statute; and I so ruled." If the objection had been that the examination of the jurors was not in order, and this had been sustained, counsel would in all probability have renewed his questions after the slips were handed him; but having been refused the privilege of asking them, on a ground that would have rendered them improper at any time, we do not see what good could have been accomplished by another attempt at another time. The plaintiff, having interposed one ground of objection in the court below, cannot set up another here. He must be held to have waived his right to claim that the examination of the jurors was attempted at an improper time. As a matter of substantial justice it made no difference whether the jurors were...