M. L. Mayfield Petroleum Corporation v. Kelly

• Citation: 450 S.W.2d 104
• Decision Date: 15 January 1970
• Docket Number: No. 452,452
• Parties: M. L. MAYFIELD PETROLEUM CORPORATION et al., Appellants, v. Helen McVey KELLY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 104

450 S.W.2d 104

M. L. MAYFIELD PETROLEUM CORPORATION et al., Appellants, v. Helen McVey KELLY et al., Appellees.

No. 452.

Court of Civil Appeals of Texas,

Tyler.

Jan. 15, 1970.

Rehearing Denied Feb. 12, 1970.

H. M. Harrington, Jr., Longview, for appellants.

Law Offices of Fred Erisman, Longview, for Helen McVey Kelly and O . Kelly.

Bean, Ford, Schleier & Dickerson, Foster T. Bean, Kilgore, for G. A. Beard.

Kenley, Boyland, Hawthorn & Starr, R. O. Kenley, Jr., Longview, for Byron G. Bronstad.

McKAY, Justice.

M. L. Mayfield Petroleum Corporation, M. L. Mayfield, and W. S. Morris brought suit against Helen McVey Kelly and husband, Ocie Kelly, Byron G. Bronstad and G. A. Beard alleging fraud under Article 4004, Vernon's Ann.Tex.Civ.St. (now Sec. 27.01, Business and Commerce Code, V.T.C.A.), in the sale of thirteen oil wells in Kilgore Townsite, East Texas Field, Gregg County. Plaintiffs prayed for damages of $200,000.00, and sought judgment against defendants jointly and severally.

The allegations of plaintiffs in their pleadings were that defendant Helen McVey Kelly, the owner of the wells sold, represented that the wells were making their allowable (20 barrels per day), that each of the wells was capable of making its own allowable, and that such representations were false. It was alleged that Mrs. Kelly made the above representations to plaintiff Morris on March 6, 1965, and to plaintiffs Mayfield and Morris on March 13, 1965. It was also alleged that the defendant Beard, employed by Mrs . Kelly as switcher on the wells, gave plaintiff Morris certain information about equipment and production on March 6, 1965, and advised him that one well had been curved out but represented the remaining wells had never had any difficulty in making their full allowable, that the wells were still capable of making the same amount of oil as shown by tests made in February, 1965, and that such representations were false. Plaintiffs alleged that defendant Beard made substantially the same representations to both plaintiffs Mayfield and Morris on March 13, 1965, that all of the wells were easily capable of making their allowable.

Defendant Bronstad was alleged to have represented on March 6, 1965, and on March 13, 1965, that each of the wells was capable of making its own allowable. Bronstad was Mrs. Kelly's bookkeeper and employee and furnished copies of reports to the Railroad Commission and other information on production history. Bronstad's representations were alleged to be false.

Plaintiff Morris had received information that these wells were for sale some time prior to March 6, 1965, and when he talked to each defendant on that date, he was compiling information and data which he incorporated in a detailed report and analysis to plaintiff Mayfield on or before March 13, 1965.

It was alleged plaintiff Morris furnished to plaintiff Mayfield the information gathered by Morris from defendants, both oral statements and documentary and statistical data, and when Mayfield came to Kilgore on March 13, 1965, the representations as above set out were made to him. Mayfield, on March 13, 1965, delivered his check in the sum of $5,000.00 to Mrs. Kelly as earnest deposit to show his sincerity in attempting to obtain bank loans to raise funds to buy the wells at the agreed price of $210,000, and when the purchase price was paid, the sale would be effective April 1, 1965.

Plaintiff Mayfield took possession of the wells on April 1, 1965, and retained as his employee defendant Beard, the switcher, and Mayfield paid Beard's salary and received production reports from him from April 1, 1965. Mayfield obtained the necessary financing and paid $205,000 as the remainder of the purchase price on May 14, 1965. Beard notified Mayfield on May 18, 1965, that the wells would not make their allowable because of the encroachment of salt water.

Trial was had before a jury with Judge Sam B. Hall presiding. Judge David Moore received a partial verdict from the jury, and Judge Hall entered judgment for defendants that plaintiffs take nothing. Plaintiff Morris took a non-suit and was dismissed from the case before verdict or judgment, and therefore plaintiffs M. L. Mayfield Petroleum Corporation and M. L. Mayfield are appellants here.

Appellants' first point is that the trial court erred in granting defendants a total of 18 peremptory jury challenges. Rule 233, Vernon's Texas Rules of Civil Procedure, provides that each party to a civil suit shall be entitled to six peremptory challenges in a case in the district court. Parties on the same side of the docket may be entitled to separate peremptory challenges even though no affirmative relief is sought, one against the other. Tamburello v. Welch, 392 S.W.2d 114 (Tex.Sup., 1965). In the Tamburello case, supra, the plaintiff charged each of the defendants with different acts of negligence, and the jury by its answers might have acquitted one defendant of negligence and found that the other was responsible for the collision.

In the instant case, the plaintiffs alleged false representations against each defendant at different times and places, and the jury might have found each defendant, separately, was guilty of fraud independently of the others. We believe the trial court was correct in allowing six challenges to each defendant here where plaintiffs prayed for a joint and several judgment under these circumstances. Tamburello v. Welch, supra; Brown & Root, Inc. v. Gragg, 444 S.W.2d 656 (Tex.Civ.App., Houston, 1st Dist., 1969, writ ref., n.r.e.).

The trial court must determine from the allegations in the pleadings whether two or more parties are entitled to six jury strikes each. Brown & Root, Inc. v. Gragg, supra; Cruse v. Daniels, 293 S.W.2d 616 (Tex.Civ.App., Amarillo, 1956, writ ref., n.r.e.).

There is no showing that appellants had to accept on the jury an objectionable juror. The juror said to be objectionable became such when he could not or would not agree to a verdict on issues favorable to appellants. The record here shows appellants had one strike left when they reached the objectionable juror. They did not strike him nor did they indicate they wanted to strike him or would have struck him as objectionable. Appellants' contention is that the objectionable juror would not have been reached except for the court allowing each of three defendants six challenges each. They did not show an objectionable juror sat on the case as a result of the court's action. Texas Employers' Ins. Ass'n v. Shropshire, 343 S.W.2d 772 (Tex.Civ.App., Texarkana, 1961, writ ref., n.r.e.); City of Hawkins v. E. B. Germany & Sons, 425 S.W.2d 23 (Tex.Civ.App., Tyler, 1968, writ ref., n.r.e.). Appellants' first point is overruled.

In their second point appellants contend that the trial court committed error in entering judgment on the partial findings of the jury. ¹ Appellants complain that the jury was deadlocked or hung, and (1) that there was no verdict, and (2) that the answers made by the jury would not support a judgment for either side.

The trial of this case began on Monday, February 17, 1969, and the evidence was concluded at noon on Friday, February 21, 1969. The charge was prepared, the case was argued to the jury during the afternoon of Friday, February 21, 1969, and the jury deliberated until 8:45 P.M. when they were recessed to Monday, February 24, 1969 . They reconvened on Monday and deliberated until 5:00 P.M. On Tuesday, the jury reconvened and deliberated until 4:30 P.M. when they advised Judge David Moore, then presiding, that they were unable to reach a verdict. The Court had the jury brought into the courtroom and then asked whether the jury had answered any of the issues, and the foreman said they had. The Court then asked whether such answers were by unanimous agreement or by majority vote, and the foreman advised that some answers to some issues were unanimously agreed on while some were answered by majority vote. The Court then instructed the jury to return to the jury room, strike out all answers except those unanimously agreed upon. The jury then returned to the courtroom. There is some dispute about whether the Court asked the jury if the answers made were the answers of each juror, but the Court did have the foreman sign the verdict and discharged the jury. The answers were then read to counsel after the jury had gone. Upon hearing the jury's answers, the defendants stated to the Court that they wished to make a motion for judgment, and plaintiffs' counsel stated that he wanted to move for a mistrial. The Court advised counsel they would have to present their motions to Judge Hall who tried the case. Such motions were subsequently filed and heard by Judge Hall.

Counsel may have anticipated or expected the Court to declare a mistrial and dismiss the jury when they were brought into the courtroom in response to the jury's message that it was hung. However, the Court never declared a mistrial, but, to the contrary, everything he did indicated that he would receive, and he did receive, the partial verdict of the jury. All counsel agreed to the discharge of the jury, and the jury had left the courtroom when the Court read the answers to those issues unanimously agreed upon, and named the issues left unanswered. The questions arise (1) whether appellants waived their right to complain to the receipt of a partial verdict under the circumstances, and (2) whether the Court committed error in rendering judgment based on the partial verdict.

It is our opinion that the court's action in failing to declare a mistrial, in sending the jury back to the jury room to bring back answers to only those issues unanimously agreed upon, having the foreman sign the verdict, and, in effect, receiving it as a verdict was notice to appellants that they must object to such procedure, or request the jury to be sent back to deliberate further, or request that the Court discharge the jury without...