McCauley v. Charter Oak Fire Ins. Co.
| Decision Date | 15 December 1983 |
| Docket Number | No. 12-82-0051-CV,12-82-0051-CV |
| Citation | 660 S.W.2d 863 |
| Parties | Timothy McCAULEY, Appellant, v. CHARTER OAK FIRE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
John E. Trube, Tyler, for appellant.
Roger Anderson, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellee.
Before SUMMERS, C.J., and McKAY and COLLEY, JJ.
Timothy McCauley brought suit against Charter Oak Fire Insurance Company on a worker's compensation claim. The case was submitted to the jury on special issues. After considerable deliberation, the jury announced to the court that they were unable to reach a verdict. The court then ordered the jury back into the courtroom. The judge questioned the foreman concerning how many jurors had voted for or against various special issues. The foreman questioned the judge concerning the instructions regarding the requirement that the same ten jurors must agree on all the issues. The statement of facts reflects the following:
The judge then asked the foreman to return the blank verdict to the court. The court stated:
All right. Members of the jury, then in just a moment on your announcement to the Court, the Court would indicate that the Court has no alternative except on your announcement and indication that you are unable to reach a verdict by ten persons agreeing to all of the answers to the entire verdict in there, the Court not being able to resolve the conflicts as announced to the Court for the purpose of accepting a verdict in the cause, the Court would indicate that it would be necessary for the Court to declare a mistrial and discharge the jury in this case for [sic] further deliberation.
The judge thanked the jurors, told them they were now free to talk about the case, and gave them their checks.
While the jury remained together in the courtroom the judge questioned the foreman again about the votes on Special Issues 1, 2, and 3. The foreman reiterated his question about the requirement that the "same" ten people must vote the same on all the issues. The judge told him yes. At that time the judge asked the jury to return to the jury room and write the answers to the issues that had ten votes. Counsel for plaintiff McCauley objected. The jury later returned to the courtroom with its verdict.
The jury answered the special issues as follows:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Timothy McCauley received an injury on or about June 20, 1979?
If you have answered Special Issue No. 1 "We do," and only in that event, then answer:
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Timothy McCauley received such injury in the course of his employment by Kelly Springfield Tire Company?
If you have answered Special Issue No. 2 "We do," and only in that event, then answer:
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that such injury was a producing cause of any total incapacity?
If you have answered Special Issue No. 2 "We do," and only in that event, then answer:
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that such injury was or will be a producing cause of any partial incapacity?
The same two jurors voted "we do not" on Special Issues 1 and 2. Two different jurors voted "we do" on Special Issue 3. The same two jurors that voted "we do" on Special Issue 3, voted "we do" on Special Issue 6.
The jurors did not sign the verdict which was not unanimous. Charter Oak moved for a judgment on the verdict, and McCauley moved for a mistrial. Upon receiving the jury's partial verdict the court rendered judgment in favor of defendant, Charter Oak Fire Insurance Company. Plaintiff McCauley appeals.
McCauley raises three points of error. The first point of error contends that the trial court erred in receiving a verdict after discharging the deadlocked jury. McCauley argues that since the jury had been discharged and the verdict had been returned to the court without any answers and accepted by the court, then the jury could not thereafter record its answers and return a verdict.
Charter Oak replies that the court had not discharged the jury prior to the formal completion of its verdict. Charter Oak contends, in the alternative, that even if the jury had been discharged before formally completing its verdict, the court is permitted to allow the jury to reduce its findings to writing.
Since the jurors were still assembled in the courtroom and were under the control of the court, it is our view that the jury had not been discharged. The trial judge is allowed considerable discretion in the matter of keeping a jury together until a verdict is reached. Missouri, K & T Ry. Co. of Texas v. Barber, 209 S.W. 394, 395 (Tex.Comm'n App.1919, approved).
In McCauley's second point of error complaint is made that the same ten jurors did not agree to all issues submitted and answered and that the concurring jurors did not sign the verdict as required by Tex.R.Civ.P. 292. McCauley asserts that the special issues were conditional on each other and without answering the first two special issues then the other two issues could not be answered.
Charter Oak replies that the material issues were answered by the same ten jurors so it was irrelevant that immaterial issues were not answered by the same ten jurors. Charter Oak argues that the absence of the signature of the ten jurors is trivial and harmless. Charter Oak contends that McCauley failed to secure findings upon all ultimate issues necessary to support a judgment.
Tex.R.Civ.P. 292 controls the rendition of a verdict by a portion of the original jury. Tex.R.Civ.P. 292 provides in pertinent part as follows:
A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve or of the same five members of an original jury of six ... If less than the original twelve or six jurors render a verdict, the verdict must be signed by each juror concurring therein.
The rule requires that the same ten jurors answer all of the issues, and to allow otherwise would completely ignore the clear mandate of the rule. Charter Oak cites the case of State Highway Department v. Pinner, 531 S.W.2d 851, 857 (Tex.Civ.App.--Beaumont 19...
To continue reading
Request your trial
-
O'Connell v. Chesapeake & Ohio R. Co.
...Brulotte (1980), 94 Wash.2d 794, 620 P.2d 99; Cohen v. Levin (Sup.Ct.1981), 110 Misc.2d 464, 442 N.Y.S.2d 851; McCauley v. Charter Oak Fire Ins. Co. (Tex.App.1983), 660 S.W.2d 863. The second line of cases subscribes to what has been called the "any majority" rule. See Ward v. Weekes (1969)......
-
Greater Houston Transp. Co., Inc. v. Zrubeck
...the same ten jurors answer each and all of the issues upon which the court bases its judgment. McCauley v. Charter Oak Fire Ins. Co., 660 S.W.2d 863, 866 (Tex.App.--Tyler 1984, writ ref'd n.r.e.); accord Gonzalez v. Gutierrez, 694 S.W.2d 384, 391 (Tex.App.--San Antonio 1985, no writ). Great......
-
Reed v. Sale Memorial Hosp. and Clinic
...Depot Co., 101 Ohio App. 27, 137 N.E.2d 624 (1955); Clark v. Strain, 212 Or. 357, 319 P.2d 940 (1958); McCauley v. Charter Oak Fire Ins. Co., 660 S.W.2d 863 (Tex.App.1983); Hupf v. State Farm Mutual Ins. Co., 12 Wis.2d 176, 107 N.W.2d 185 (1961). These jurisdictions follow what may be calle......
-
Pumphrey v. Empire Lath and Plaster
...and when the [party opposed to reconvening the jury] has presented no proof of outside influence"); McCauley v. Charter Oak Fire Ins. Co. (Tex. Ct.App.1984), 660 S.W.2d 863, 865 ("[s]ince the jurors were still assembled in the courtroom and were under the control of the court, it is our vie......