Sharp v. Reynolds, 7545

• Decision Date: 20 September 1965
• Docket Number: No. 7545,7545
• Parties: Ronald SHARP, Relator, v. Honorable Charles L. REYNOLDS, District Judge, et al., Respondents.
• Court: Texas Court of Appeals

Page 725

395 S.W.2d 725

Ronald SHARP, Relator, v. Honorable Charles L. REYNOLDS, District Judge, et al.,

Respondents.

No. 7545.

Court of Civil Appeals of Texas, Amarillo.

Sept. 20, 1965.

Culton, Morgan, Britain & White, Amarillor, for relator.

Paul Spillman Wellington, for respondents.

PER CURIAM.

This is a mandamus suit in which Ronald Sharp, Relator, seeks to compel Honorable Charles L. Reynolds, District Judge of the 100th District Court of Collingsworth County, to enter judgment for the Relator. The facts in this case are set out in an agreed statement as follows:

'Some three hours after the jury was retired to consider of its verdict, the court received a request from the jury, asking if they could have made available the pertinent testimony concerning the signal lights. The court instructed the jury that if the jury was in dispute regarding some portion of a witness's testimony and would certify that fact in writing over the signature of the foreman and point out the portion of the testimony in dispute, such portion of the testimony would be read to the jury, but approximately forty-five minutes later the foreman of the jury sent a note to the court stating that the jury was unable to agree on an unanimous verdict.

'After reading the jury's note to counsel, the court advised counsel that the court proposed to bring the jury into the courtroom, inquire if the jury felt if it were recessed until the following morning a unanimous verdict could be reached after further deliberation, and, if the jury so indicated it might, the jury would be recessed, but if the court was convinced the jury could not reach a unanimous verdict, the court proposed to ask the foreman whether any special issues had been answered and, if so, direct the foreman to sign the verdict, which would be accepted by the court, and the court would enter whatever judgment the verdict would support.

'Whereupon, the counsel for plaintiff stated he felt the jury should be discharged and a mistrial declared, and counsel for defendant stated he could not agree to the court's proposal to accept a partial verdict, because in view of the jury's request for the testimony concerning the signal lights, it was apparent the jury had not answered the special issues pertaining thereto, and such issues were the very crux of the defense. Counsel for defendant asked for time to confer with a third party, which was granted, and after the conference, stated to the court that he could not agree to the court's proposal to accept a partial verdict, but would abide by the ruling of the court. Counsel for the plaintiff then moved the court to discharge the jury and declare a mistrial. Counsel for the defendant then moved the court to give the jury the 'third degree' instructions and send them back either that night or the following day. The court remarked to the counsel for both parties that since this was their lawsuit, the court would follow their wishes and declare a mistrial if the court was satisfied the jury could not reach a unanimous verdict.

'No protest was made to the court's decision, and thereupon, the jury was returned to the courtroom. The court advised the jury the court had received the note advising the jury was unable to reach a unanimous verdict, and inquired of the foreman if he felt the jury could reach a verdict after further deliberation. The foreman replied, 'No. sir'. The court then asked the foreman if the jury was recessed until the following morning and then reconvened for further deliberation did he feel the jury could reach a unanimous verdict. The foreman again replied, 'No, sir'. The court then asked each of the remaining eleven members of the jury the same question and each replied in the negative. Thereupon the court discharged the jury. At no time did the court inquire as to whether any questions had been answered by the jury as submitted in the form of special issues.

'As the jury was leaving the jury box, the foreman handed the charge of the court to the bailiff, who gave it to the court. After the jury left the courtroom, the court looked at the charge and made known to both counsel that the jury had apparently answered some of the special issued because some answers were written in the blanks following some special issues. These answers indicated the plaintiff was guilty of contributory negligence. Neither the signature of the foreman nor any other member of the jury appears on the instrument.

'The court noted the docket sheet to the effect that the jury was unable to agree on a verdict, the jury was discharged, and a mistrial declared.'

After learning some of the questions showed to have been answered that the plaintiff was negligent and was a proximate cause of the accident, the defendant filed his motion for judgment but the motion was denied by the trial court. In connection with his motion for judgment defendant placed one of the jurymen on the witness stand and asked him if it was his testimony that the jury unanimously agreed that the plaintiff failed to keep a proper lookout. The juror answered, 'To the best of my knowledge, yes, sir.' As to proximate cause the juror was asked, 'Do you recall what the unanimous decision of the jury was in response to that question, if any?' The juror answered, 'I believe it was answered as, it...