Liberty Mut. Ins. Co. v. Rivas

• Decision Date: 15 April 1971
• Docket Number: No. 589,589
• Citation: 466 S.W.2d 823
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Damasio C. RIVAS, Appellee.
• Court: Texas Court of Appeals

Page 823

466 S.W.2d 823

LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Damasio C. RIVAS, Appellee.

No. 589.

Court of Civil Appeals of Texas Corpus Christi.

April 15, 1971.

Rehearing Denied May 20, 1971.

Keys, Russell, Watson & Seaman, M. W. Meredith, Jr., Corpus Christi, for appellant.

Edwards & DeAnda, William R. Edwards, Philip K. Maxwell, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a workmen's compensation case. Damasio C. Rivas, plaintiff, sued Liberty Mutual Insurance Company, defendant, alleging that he was injured on or about July 5, 1968 while working as an employee of Reynolds Metal Company. The trial court entered judgment on the jury verdict for the plaintiff. The parties will be designated here as they were in the trial court.

Defendant's First Point of Error reads as follows:

'The trial court erred in refusing appellant's request that the names of the members of the general jury panel available for service be shuffled and redrawn in a random manner.'

This case, along with other civil cases, was set for trial for Monday, March 9, 1970. Jury lists containing the names of 29 persons were delivered to counsel for the parties at 10:30 a.m. on that date.

The jury panel assigned to the trial court was excused until 2:00 p.m., during which interval motions in limine were heard and disposed of by the trial judge. At 2:00 p.m., when the jury panel returned, defendant requested a redrawing of the jurors' names. Following a discussion between the trial judge and counsel for defendant concerning the methods used in determining the order in which the names of prospective jurors were transcribed on the general jury panel list, Mrs. Curtis, the Assignment Clerk for the District Courts of Nueces County, Texas, was called as a witness. She testified substantially as follows: (1) a letter is written to a prospective juror summoning him (her) for jury duty on a certain day; (2) each letter is numbered; (3) the person appears at the central jury room at the appointed time and brings the letter with him (her); (4) the jurors remaining after those presenting valid excuses have been excused are qualified generally and the letters are then taken up by the bailiff and are delivered to her, the assignment clerk; (5) the bailiff, in taking up the letters, circulates among the qualified jurors and takes up the letters in a random manner; (6) the names of jurors are transcribed upon the general panel list in the order in which the letters are taken up by the bailiff; and, (7) jury lists for the requesting trial courts are then prepared by her and sent to each court.

Presumably, the number affixed to each letter is the number of the juror as his (her) name was drawn from the wheel. The record is not clear on this point.

At the conclusion of Mrs. Curtis' testimony, counsel for defendant again requested the trial court to conduct a 'drawing of the jurors' names to make up the panel for this case'. The trial court refused to do so. The jury panel assigned to hear this case was composed of jurors whose letter numbers ranged from 7 to 441. Defendant exercised all six of its peremptory challenges.

We judicially know that juries to try civil and non-capital cases (excepting lunacy cases) in the county and district courts of Nueces County, Texas, the county where this case was tried, are furnished in the manner provided by Article 2101, Vernon's Ann.Civ.St., commonly known as the Interchangeable Jury Law. Rule 223, Texas Rules of Civil Procedure which applies to Nuesces County, reads as follows:

'In counties governed as to juries by the laws providing for interchangeable juries, The names of the jurors shall be placed upon the general panel in the order in which they are drawn from the wheel, and jurors shall be assigned for service from the top thereof, in the order in which they shall be needed, and jurors returned to the general panel after service in any of such courts shall be enrolled at the bottom of the list in the order of their respective return; provided, however, that The trial judge upon the demand of any party to any case reached for trial by jury, or of the attorney for any such party, shall cause the names of all the members of the general panel available for service as jurors in such case to be placed in a receptacle and well shaken, and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such cause, and such names shall be transcribed in the order drawn on the jury list from which the jury is to be selected to try such case.' (Emphasis supplied).

Plaintiff contends that defendant waived whatever rights it might have had to a redrawing of the names of jurors. Assuming that the irregularity in the manner of making up the jury panel is a matter that could have been waived by the defendant and would have been waived by its failure to interpose a timely and proper request, we do not believe that defendant waived it in this case. The announcement of ready prior to 2:00 p.m. by defendant did not constitute a waiver of such right. The jury panel was excused by the trial court at 10:30 a.m. and returned to the courtroom at 2:00 p.m., pursuant to instruction of the court. Everything proceeded in an orderly fashion. We see nothing unusual or harmful about the timing of the request; up until that time, the court, as well as counsel, was preoccupied with preliminary matters. No compelling or limiting reason exists as to why defendant should have made such request prior to the time that it was made. Defendant's request was made before any voir dire examination, before the oath required by Rule 226 was administered, and before the admonitory instructions required by Rule 226a were given. The request was also made prior to any challenges for cause under Rule 228, and prior to any peremptory challenge, under Rule 232. Under the circumstances, defendant did not waive its right to have the names of the jurors shuffled and redrawn, as provided by Rule 223.

There is a dispute as to the extent of defendant's request. Plaintiff says that defendant requested a redrawing of the names of all jurors available for service in the central jury room. Defendant maintains that it requested a redrawing of only the 29 names on the list sent to the trial court from the general jury panel. Plaintiff argues that a request to shuffle and redraw the names should be made before other jurors on the general panel in the central jury room are sent to various other courtrooms for jury service. We do not agree. The shuffling and redrawing comes in the trial court after the list of veniremen is delivered to the requesting court, and is conducted by the trial judge who is required, on demand only, to 'cause the names of all the members of the general panel Available for service as jurors in Such case to be placed in a receptacle', etc. The language 'names of all the members of the general panel available for service' can apply only to one of two groups of jurors, either those persons on the list sent to the trial court from the central jury room, or, those persons on that list plus any other jurors on the general jury panel who are then unassigned. Certainly, those members of the general panel who had already been detailed for service and sent to other courts for use in the requesting courts as jurys in their cases, would not, and in the very nature of the situation could not, be available for service in any other case. Plaintiff's contention in this regard is without merit.

We do not decide whether defendant's request was limited only to the 29 persons named on the jury list delivered to the trial court, or whether the request included those persons plus other jurors, if any, who were not, at 2:00 p.m., then assigned to another court. That decision is not necessary in order to dispose of this appeal. The trial court refused the request, whatever its extent may have been.

Rule 223, T.R.C.P., is explicit in the manner of listing the names of the jurors on the general panel. It is also explicit in enjoining upon the trial judge the duty of conducting, upon demand, a special drawing of the names of all members of the general panel available for service in the case assigned to his court for trial. It was error for the names of the jurors to be placed upon the general panel by the expedient of taking up of the jury letters by the bailiff and then recording the names on the general panel list in the order in which the letters were taken up, as was done here. It was error for the trial court to deny defendant's request for a redrawing of the jurors available to try its case. However, it does not necessarily follow that, because defendant's request was refused, a reversal will inevitably result. Before a reversal is ordered, the record must show that substantial injury was sustained by defendant by reason of the action of the court. Our Supreme Court has held that even though the trial court violates a rule of civil procedure in the trial, reversal will not ensue in the absence of a showing that injury resulted. Ross v. Texas Employer's Ins. Ass'n, 153 Tex. 276, 267 S.W.2d 541 (1954); Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949).

Motion for new trial was overruled and later, after the hearing on the motion for new trial, and in the absence of counsel for defendant, the trial judge made the following comment:

'The first request I heard to shuffle the list of 28 jurors assigned to this court was on the Motion for New Trial. If that request had been made at the outset of the trial, that request would have been granted.'

We are of the opinion, and so hold, that the request of defendant for a redrawing of the names of the jurors by the trial judge, as envisaged by Rule 223 T.R.C.P., was timely made. The trial judge's statement of his recollection of the request cannot overcome the request itself, which, according to the record, was made...