Pryor v. New St. Anthony Hotel Co.

• Decision Date: 11 December 1940
• Docket Number: No. 10946.,10946.
• Citation: 146 S.W.2d 428
• Parties: PRYOR et al. v. NEW ST. ANTHONY HOTEL CO.
• Court: Texas Court of Appeals

146 S.W.2d 428

PRYOR et al. v. NEW ST. ANTHONY HOTEL CO.

No. 10946.

Court of Civil Appeals of Texas. San Antonio.

December 11, 1940.

Rehearing Denied January 15, 1941.

Appeal from District Court, Bexar County; Harry L. Howard, Judge.

Action by Myra S. Pryor and another against the New St. Anthony Hotel Company for injuries caused by slipping on the floor of defendant's coffee shop. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Denman, Franklin & Denman and Carter & Lewis, all of San Antonio, for appellants.

Johnson & Rogers, of San Antonio, for appellee.

MURRAY, Justice.

This suit was instituted by Mrs. Myra S. Pryor against New St. Anthony Hotel Company to recover damages resulting from personal injuries which she sustained in a fall while entering the Hotel Company's coffee shop as an invitee and customer.

This is the second appeal of this case. Our opinion on the first appeal is to be found in 132 S.W.2d 620.

The second trial, from which this is an appeal, was to a jury which found: (Issue 1) that Mrs. Pryor slipped down in the defendant's coffee shop; (Issue 2) that there was no water at the place where the plaintiff slipped; (Issue 6) that the waxing and polishing of the floor had not produced a slippery condition at the place where the plaintiff slipped; (Issue 9) that the rubber mat or a part thereof slipped on the floor when Mrs. Pryor stepped on the mat; (Issue 10) that the defendant was not negligent in having said unfastened mat on the floor at said locality; (Issue 12) that plaintiff's fall was the result of an unavoidable accident; (Issues 14-17) that the plaintiff did not assume the risk and that she was not guilty of contributory negligence and that the fall was not caused solely by her physical condition; (Issue 18) that because of the injuries sustained by reason of her fall Mrs. Pryor was damaged to the extent of $17,500.

The trial court entered judgment for defendant and Mrs. Pryor has prosecuted this appeal.

Appellant contends that the jury was guilty of misconduct requiring a reversal of the judgment, because during their deliberations while the jury were divided as to what answers should be made to Issues Nos. 2 and 6, some of the jurors stated, in substance, that it was immaterial how they answered these issues because Mrs. Pryor would recover her damages regardless of how these issues were answered, and that thereby some of the jurors were induced to answer these issues "no" when they really felt from the evidence that the issues should be answered "yes."

Five jurors were called to testify upon this question.

Henry Waller, a juror, testified, in effect, that after the jury answered issue No. 1 "yes" and while they were considering issue No. 2, some of the jury having indicated they thought the issue should be answered that there was water at the place where Mrs. Pryor fell and others having indicated that the issue should be answered "no," one of the jurors, Mr. Boatner, asked the question whether or not they were going to allow Mrs. Pryor any damages, and that the jury agreed to allow her some damages. It was then suggested by some of the jurors that it was immaterial how they answered the issues, that she would get her damages just the same. Waller admitted that this discussion influenced him to answer issues Nos. 2 and 6 "no" when he really believed from the evidence that they should have been answered "yes."

On cross-examination Waller testified, in effect, that each time it was mentioned that the answers were immaterial as Mrs. Pryor was going to get damages in any event, some of the jurors would speak up and say that they were not concerned with the effect of their answers and that it was improper for them to consider such matters. He further testified, in effect, that he answered each issue separately and right down the line to the best of his ability in keeping with the charge and the evidence.

J. A. Thompson, another juror in the case, called as a witness, testified, in effect, as follows: That while the jury was deliberating and after they had answered some of the questions and were going back over their answers the question arose as to whether Mrs. Pryor could recover if they answered issue No. 2 "no," and that it was argued by some of the jurors that only if they desired to give Mrs. Pryor the full $50,000 she was suing for was it necessary to answer question No. 2 "yes," but that she could recover a part of what she was suing for even if this issue was answered "no." He agreed to answer this issue "no" after much discussion along the line above set out, although he believed there was water where Mrs. Pryor slipped and fell. He also agreed to answer issue No. 6 "no" after this discussion, when he believed from the evidence that the waxing and polishing of the floor produced a slippery condition at the place where Mrs. Pryor fell down.

On cross-examination he testified that he heard the court, and the lawyers in their argument, tell the jury that they should answer each question separately and one at a time right down the line, and that each question should be answered according to what the jury believed the evidence to be and that he made his answers to the best of his ability, under the evidence, just like the court told him to do. That when they would get to arguing about a question "that we couldn't give the woman anything unless we answered the questions differently, some one would speak up and say we were not concerned with that; that the court had instructed us that we were not concerned with the effect of our answers and that we should answer the questions under the evidence and that it wasn't any of the jury's business to decide what the effect of the answers were."

J. F. Scholz, another one of the jurors called as a witness, testified in substance as follows: That when they went out to deliberate upon a verdict they took up each question separately, had their arguments and finally agreed on what the evidence showed. After the jury had answered the questions some one said something about the effect of their answers and that the foreman and another juror told them that it was none of their business what effect the answers would have and that they could not talk about that. The discussion about the effect of the answers came up after the jury had already answered the questions. He also testified, some one mentioned the fact that Mrs. Pryor was a wealthy woman and that the jury on a prior trial did not give her any damages, but that such remark had no effect upon him.

J. W. Riggs, another juror, testified as follows: That while the jury were deliberating upon their verdict some juror said that Mrs. Pryor was already a wealthy woman and it seemed like she wouldn't be entitled to anything, or that she wouldn't want anything. That it was also stated that the cause had been tried before and that the jury did not give her anything on the first trial. He denied that these statements affected his verdict, but admitted that he had given appellant's attorney a written statement to the effect that he presumed these things led him to agree to the answers that are written to the questions.

He further testified that he had heard some one say that they should answer the questions so that Mrs. Pryor would get something and this happened while they were answering the first twelve questions. He...