Kindy v. Willingham

• Decision Date: 29 July 1947
• Docket Number: No. 6283.,6283.
• Citation: 205 S.W.2d 435
• Parties: KINDY et al. v. WILLINGHAM et al.
• Court: Texas Court of Appeals

Page 435

205 S.W.2d 435

KINDY et al. v. WILLINGHAM et al.

No. 6283.

Court of Civil Appeals of Texas. Texarkana.

July 29, 1947.

Rehearing Denied September 11, 1947.

Appeal from District Court, Cass County; Robert S. Vance, Judge.

Action by Homer Kindy and others against A. C. Willingham and others for personal injuries sustained in a truck collision. Judgment for defendants, and plaintiffs appeal.

Affirmed.

See also 203 S.W.2d 991.

Jones, Jones & Brian, of Marshall, and S. I. Cornett, of Linden, for appellants.

Scott, Wilson & Cureton, of Waco, Carney, Carney & Mays, of Atlanta, and Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellees.

HARVEY, Justice.

Homer Kindy brought suit against A. C. Willingham and others in the District Court of Cass County, Texas, for personal injuries sustained by him on April 21, 1946, while riding in a truck and trailer operated by Clint Spann. Spann was traveling south from Douglassville toward the town of Linden, Texas, and a collision occurred between his truck and a truck and trailer driven by W. S. Steese, which was traveling north from Linden on the state highway in the direction of Douglassville. The scene of the accident was about two miles north of Linden and on a concrete bridge eighteen feet wide. Each of the trucks involved in the accident was seven feet wide. The trial was had to a jury and thirty-one issues were submitted. Upon the basis of the answers returned the court entered judgment in favor of the defendants. The amount of damages found to have been sustained by plaintiff was $31,000. After plaintiff's motion for a new trial was overruled, he, in due season, perfected an appeal to this court.

Appellant assigns error to the action of the trial court in overruling his motion for a new trial, founded in part upon jury misconduct. After the entry of judgment in favor of defendants, a hearing was had before the court on the plaintiff's motion for a new trial in regard to the alleged misconduct of the jury. The court filed his findings of fact with reference thereto, which in substance were that after the jury had deliberated for several hours, during which time they through discussion made known their position on the issues in the case, which included issue No. 6, they found that they were hung or would be unable to reach an agreement and agreed that they would abide by a verdict of seventy-five per cent of their number. The court found in addition that after such agreement a definite vote was taken and the issues were answered, some of them being by unanimous vote; that after all the issues had been answered all twelve of the jurors consented to the verdict as being their verdict; that when the jury reported in open court each issue was read to them and the court asked the jury if the answers to the issues were their verdict. They answered, some by an affirmative showing and others by silent acquiescence. Appellant urges that a verdict arrived at in the manner indicated was reversible error and in violation of Rule 291, Texas Rules of Civil Procedure, which in part provides as follows.

"No verdict shall be rendered in any cause except upon the concurrence of all members of the jury trying the case."

The case of Casstevens v. Texas & P. R. Co., Tex.Civ.App., 28 S.W.2d 288; Id., 119 Tex. 456, 32 S.W.2d 637, 73 A.L.R. 89, cited by appellant, is authority for the proposition that where jurors agree in advance of having ascertained how each other stands with reference to answering the issues submitted to them that they would be bound by the opinion of the majority, and adopt that method in arriving at their verdict, such conduct constitutes error and is a basis for a new trial. The vice of such method in arriving at a verdict is that the jurors without knowing how each other stands in regard to the issues bind themselves to be bound by the answers without knowing what they will be, or without being cognizant of the verdict they are obligating themselves to return. In a later opinion by the Supreme Court in the case of Boddeker v. Olschewske, 127 Tex. 598, 94 S.W.2d 730, 732, the distinction has been made as to the effect of an agreement by jurors to be bound in advance of determining each other's position on the issues submitted and an agreement made after they had made known their opinions with respect thereto. The following quotation from the case last above mentioned states the rule and summarizes the distinction between it and the Casstevens case:

"A careful consideration of all of the evidence offered in support of the motion has convinced us that a fact issue was raised as to whether this agreement was made before the test vote was taken showing a majority against the claim of limitation. If, as some of the testimony indicates, the jurors, after voting 7 to 5 on the issue, then agreed that the minority would go over to the majority, such agreement does not fall under the condemnation of the rule announced in the Casstevens Case. The agreement there condemned was one made in advance when it was not known how the majority would vote. An agreement made after it became known on which side the majority had voted, the effect of which was that the minority would defer to the majority and make the vote unanimous, does not constitute misconduct. We approve the holding of the Court of Civil Appeals on this question as reflected by its opinion on motion to correct its original opinion."

We are of the opinion that the Boddeker case rules the instant case and the distinction drawn is based upon sound considerations. A distinguishing characteristic between humans and lower orders of animals is their ability to reason. Being endowed with the power to reason, people as a consequence differ in their opinions and deductions. Very seldom does a group of individuals on first impression agree on hardly any fact upon which they may be called to express an opinion. What one thinks is beautiful, another might think unattractive; what one might think is beneficial, another might consider harmful; what one thinks is good, another thinks is bad. Being reasonable creatures we differ on the ordinary facts of life and form opinions which, after more mature consideration, are subject to change. In the jury room, if...