St. Louis Southwestern Railway Company v. Gregory

• Decision Date: 27 January 1965
• Docket Number: No. A-10203,A-10203
• Citation: 387 S.W.2d 27
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Mrs. J. A. GREGORY et al., Respondents.
• Court: Texas Supreme Court

Page 27

387 S.W.2d 27

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Mrs. J. A. GREGORY et al., Respondents.

No. A-10203.

Supreme Court of Texas.

Jan. 27, 1965.

Rehearing Denied March 10, 1965.

Joe N. Chapman, Sulphur Springs, O. O. Touchstone and John B. Webster, Dallas, for petitioner.

Jones, Brian, Jones & Baldwin, Marshall, Howard S. Smith, Sulphur Springs, for respondents.

CALVERT, Chief Justice.

This suit grew out of a train-automobile collision at a railroad crossing. Damages were sought for the deaths of Thomas Ray (Butch) Gregory, J. A. Gregory and Douglas McCord, and for injuries to Mark Gregory, all occupants of the automobile. Trial was to a jury, and a take-nothing judgment was rendered on the jury's verdict. The Court of Civil Appeals reversed the trial court's judgment and remanded the cause to that court for a new trial. 377 S.W.2d 847. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Sixty-one special issues covering primary negligence of the defendant and its employees, contributory negligence of Thomas Ray Gregory, operator of the automobile, discovered peril, unavoidable accident and damages were submitted to the jury. We need not summarize all of the issues and the answers of the jury thereto. It is sufficient for opinion purposes to state that the jury did not find the defendant Railway Company or its employees guilty of any act of negligence which was a proximate cause of the collision; found that the occupants of the automobile were in a position of peril just before the collision, but that the operatives of the train did not discover the perilous position of such occupants in time to avoid the collision; found that the collision was not the result of an unavoidable accident; found that the air horn and bell on the locomotive were sounded prior to the collision; found that Thomas Ray Gregory was negligent in failing to heed the horn and bell, and that such negligence were proximate causes of the collision. From the findings thus summarized, it is obvious that the plaintiffs' rights to recover damages were barred by the failure of the jury to find the defendant or its employees guilty of any acts of negligence proximately causing the collision as well as by its findings that the negligent omissions of the operator of the automobile were proximate causes of the collision.

Plaintiffs' points of error in the Court of Civil Appeals presented five reasons why that Court should reverse the judgment of the trial court and remand the cause for a new trial. The reasons may be summarized as follows: (1) The juror Bradford was disqualified to serve as a juror in the case because of bias and because he possessed prior information on a vital issue in the case which he concealed on voir dire examination, and plaintiffs were therefore denied a fair jury trial. (2) Misconduct on the part of the juror Bradford. (3) Misconduct on the part of counsel for defendant. (4) The cumulative effect of misconduct of juror Bardford and misconduct of counsel. (5) The verdict of the jury was contrary to the overwhelming weight and preponderance of the evidence.

The Court of Civil Appeals rejected reason (5) by its holding that the verdict was not contrary to the overwhelming weight and preponderance of the evidence. This Court has no jurisdiction to review that holding. Art. V, Sec. 6, Constitution of Texas, Vernon's Ann.St.; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030, 1034. The Court held that reason (3) did not require reversal of the trial court's judgment, but that reasons (2) and (4) did; and, having so held, the Court found it unnecessary to decide whether reason (1) required reversal. Before it may be said that the Court of Civil Appeals erred in reversing the judgment of the trial court and remanding the cause for a new trial, it must appear that none of the first four reasons presents a sound basis for that action. They will be considered in the order in which they have been listed.

DISQUALIFICATION OF THE JUROR BRADFORD

The parties disagree as to whether the question of juror Bradford's disqualification was properly preserved for appellate court decision. The record discloses, clearly we think, that the question was not preserved.

Plaintiffs were required by Rule 324 ¹ to file a motion for new trial as a prerequisite to their right of appeal. Under the provisions of Rule 320 they were required to 'specify each ground' on which their motion was founded, under penalty that 'no ground not specified shall be considered.' Moreover, Rule 374 provides: 'A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.' The matter of juror Bradford'd disqualification was not included in any assignment of error in plaintiffs' motion for new trial or in their amended motion for new trial, and was not, therefore, preserved for appellate court review. Parenthetically, it should be observed that the record reflects that Bradford did not conceal the fact on voir dire examination that he had prior information concerning the collision, as will now be shown.

The record reflects that shortly after the collision, which occurred on December 21, 1961, one Raymond Vaughn, operator of a country store, stated to Bardford that Thomas Ray Gregory had been having trouble with the carburetor on his car on the day before the collision. This suit was filed on March 16, 1962, and went to trial on December 3, 1962.

Voir dire examination of Bradford by defense counsel developed that he had heard about the accident on radio and had read about it in the newspaper. The examination continued with the following questions and answers:

'Q Now, did you ever discuss it with anybody?

'A Yes, sir, sure did.

'Q. Whom did you discuss it with?

'A Well, with my wife and the son Marvin (Gregory) lived about two and a half miles from where I live, and we trade at the same store, but we wasn't social, we didn't know each other actually before his brother was killed, but we trade at the same store and therefore I discussed it with the store owner there at the time it happened.

'Q You ever discussed it with Marvin?

'A No, sure didn't.

'Q But you are both customers of the same store and you talked at the store about it. Did you talk to anybody else?

'A That is the only one I can think of.

'Q Now, from hearing it on the radio, reading about it in the newspaper, talking with the store owner, did you form any opinion?

'A No, sir.

'Q With reference to the merits of the matter?

'A No, sir, no evidence either way as far as I know.

'Q You formed no opinion?

'A No, sir.'

It is to be noted that although Bradford plainly revealed, and did not conceal, the fact that he had discussed the accident with his wife and with the owner of the store where both he and Marvin Gregory traded, counsel for neither party saw fit to inquire into or to develop the substance of the discussion. Opportunity to make the inquiry out of the presence of the other prospective jurors was afforded, and thus could have been done without prejudice. The trial court found as a fact that Bradford 'truthfully answered all questions propounded to him on voir dire examination'; and the record furnishes no reason for saying that Bradford would have failed or have refused to give honest answers to any other questions which might have been propounded. Having failed to probe into Bradford's conversation with Vaughn, plaintiffs are not in position to complain of the failure of Bradford to reveal the substance of the conversation. See City of San Antonio v. Willinger, Tex.Civ.App., 345 S.W.2d 577, no writ history.

MISCONDUCT OF THE JUROR BRADFORD

The juror Bradford was undoubtedly guilty of misconduct and the trial court so found. The important question here, however, is whether Rule 327, governing the granting of new trials, required the trial court to grant a new trial because of the misconduct. The Court of Civil Appeals has held that it did, and this was the principal reason for the action of that Court in reversing the judgment of the trial court.

The record discloses two acts of misconduct by the juror Bradford. The first occurred during the course of the trial and after adjournment of the court for the day. Juror Anderson was riding to his home as a passenger in Bardford's automobile. During the course of the trip, Bradford, according to the trial court's finding, 'made a statement to juror Anderson to the effect that he, the said Bradford, had heard that Butch Gregory had been having trouble with the carburetor on his automobile the day before the collision occurred.' The second act of misconduct occurred on the following day when Bradford drove his automobile to Raymond Vaughn's store on a business mission. While there Bradford asked Vaughn 'in effect, whether or not the said Vaughn shortly after the collision had occurred, had stated that on the day preceding the collision Butch Gregory had been having trouble with the carburetor on his automobile,' and he also told Vaughn that he, Bradford, 'had been looking for Vaughn up at the courthouse as a witness because Vaughn had told Bradford that Butch Gregory's car died or his carburetor was out of shape the day before the accident.' According to the trial court's finding and the testimony of both Bradford and Vaughn, Vaughn made no reply to Bradford; he 'merely 'laughed it off."

Bradford's conduct was in violation of instructions given to the jurors by the court during the course of the trial that they should not 'discuss the facts, or purported facts of the case, either among themselves, nor allow anyone to discuss same with them'; that they should 'not undertake any investigation or personal observations of any kind'; and 'not to go out and seek information or look for evidence.' Undoubtedly the trial court could have punished Bradford for contempt for violating...