Southwestern Public Service Co. v. Morris

• Decision Date: 04 May 1964
• Docket Number: No. 7353,7353
• Citation: 380 S.W.2d 648
• Parties: SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellant, v. Vernon L. MORRIS et al., Appellees.
• Court: Texas Court of Appeals

Page 648

380 S.W.2d 648

SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellant, v. Vernon L. MORRIS et al., Appellees.

No. 7353.

Court of Civil Appeals of Texas, Amarillo.

May 4, 1964.

Rehearing Denied June 8, 1964.

Stone & Stone, Amarillo, Lovell & Lyle, Dumas, for appellant.

McCown & Cobb, Dumas, for appellees.

CHAPMAN, Justice.

This is an appeal by Southwestern Public Service Company, a private electric power company, from a judgment based upon a jury verdict for Vernon L. Morris and wife, Lois Virginia Morris and Amicable Life Insurance Company for damages in a condemnation suit filed by the power company to condemn a 30-foot wide easement for a electric transmission line across the Morris property.

It is agreed by all parties that the first three points in the power company's appeal in this case are the same points of alleged error urged by the same appellant in Southwestern Public Service Company v. William Clay Spurlock and Harvey Spurlock, No. 7340, and Southwestern Public Service Company v. Joyce Gilbert Spurlock and husband, Clay Suprlock, and Clay Spurlock. Administrator With Will Annexed of the Estate of Cline Gilbert, No. 7341, announced by our court on March 30, 1964, and which involves the same witness and the same type testimony. The case is reported in Tex.Civ.App., 378 S.W.2d 134, and we refer to that case for a proper disposition of the first three points in this case.

The fourth point urged is that error was committed by the court in refusing condemnor's request that the jury panel be drawn before the selection of the jury.

It is difficult for us to understand why a trial court would refuse such request. Rule 224 Vernon's Ann.Tex.Rules specifically provides that the clerk in a county such as the one in which this case was tried shall draw the names in the manner here requested. It was clearly error to refuse the request but under the record before us it is not such error as requires a reversal.

Long before the adoption of Texas Rules of Civil Procedure, effective September 1, 1941, [and specifically Rules 434 and 503], it was held that where the court failed to comply with the statutes that preceded Rule 224 the record should show that some injury may have been sustained by the party appealing in order to justify reversal. Galveston, H. & S. A. Ry. Co. v. Wessendorf, Tex.Civ.App., 39 S.W. 132.

Rule 434 provides in part as follows:

'* * * no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.'

The court in the Wessendorf case just cited said:

'It was the duty of the court to have required a strict compliance with the statute, which requires that the names of the jury be written on separate slips of paper, and placed in a box, and mixed well, and then drawn from the box, and written down, as drawn, on the lists given to the parties. Rev.St.1895, arts. 3217, 3218, 3224. It does not follow, however, that, because the statutory privilege damanded by appellant was refused, a reversal on that ground should be the inevitable result, but the record should show that some injury may have been sustained by appellant by reason of the action of the court.'

In an early case by the Supreme Court of Texas, the action of the trial court was condemned because of refusal to have the jury chosen in...