Texas Emp. Ins. Ass'n v. Shropshire

• Decision Date: 31 January 1961
• Docket Number: No. 7274,7274
• Citation: 343 S.W.2d 772
• Parties: TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Charies SHROPSHIRE, Appellee.
• Court: Texas Court of Appeals

Page 772

343 S.W.2d 772

TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Charies SHROPSHIRE, Appellee.

No. 7274.

Court of Civil Appeals of Texas, Texarkana.

Jan. 31, 1961.

Rehearing Denied Feb. 21, 1961.

Ramey, Brelsford, Hull & Flock, Tyler, Ramey & Ramey, Sulphur Springs, for appellant.

Howard Smith, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, for appellee.

PER CURIAM.

Appellant insurance company has appealed from a lump sum total permanent disability judgment (less $1,890 previously paid, being 54 weeks of compensation at $35 per week) rndered against it in favor of appellee in a workmen's compensation insurance case tried before a jury.

Appellant's first and second points are as follows: '1. The trial court erred in overruling Appellant's Motion for Mistrial based upon Appellee's conduct in removing from the jury panel by a witness subpoena, Joe Whitworth, an otherwise qualified prospective juror, since it was established that Whitworth was at no time in fact a witness in the case, and such conduct, in effect, gave Appellee more challenges than is permitted by law and thus deprived Appellant of a fair trial. 2. The trial court erred in overruling Appellant's Motion for Mistrial based upon Appellee's conduct in removing from the jury panel by subpoena Joe Whitworth, since it is against the policy of the law to permit a litigant to remove a jury panel member objectionable to him by a witness subpoena when it is established that the panel member is not in fact a witness in the case.' Appellee counters these points with his first counter-point as follows: 'The trial court did not err in execusing prospective juror Whitworth on his own motion but in any event appellant shows no harm to itself if the action was erroneous.'

Whitworth had been summoned on January 20, or 21, 1960, as a prospective juror, with 39 other prospective jurors. On January 23, 1960 appellee's counsel subpoenaed Whitworth as a witness for plaintiff. On January 25, 1960, the trial court in qualifying the 40 jury panel members as prospective jurors, was advised by Whitworth that he had been subpoenaed as a witness for plaintiff, whereupon the trial court on his own motion excused Whitworth from the panel, at which time neither appellant nor appellee excepted to the action of the trial court. On January 28 1960, the case proceeded to trial. A jury was selected out of the first 24 prospective jurors drawn from the jury panel, with each side exercising its six peremptory challenges or strikes, and without either party making any cross-strikes. Whitworth was not called as a witness for plaintiff. At the close of all the evidence defendant-appellant filed its motion for mistrial, alleging as grounds therefor that plaintiff by use of subpoena had effectively removed Whitworth from the jury panel who defendant alleged was objectionable to plaintiff, and by such procedure had obtained an unfair advantage in that he in effect had obtained seven peremptory challenges as compared to only six such challenges available to defendant, and that appellant was denied a fair opportunity of selecting Whitworth, who was a qualified juror, and that appellant would have accepted Whitworth as a juror. The trial court heard evidence in support of the motion for mistrial. Whitworth testified to the effect that he knew nothing of the facts of the case, knew of no reason why he had been subpoenaed, and knew of no reason why he would not have been a fair and impartial juror in the case. One of appellant's attorneys testified to the effect that defendant-appellant would have accepted Whitworth as a juror, that each party used their full six strikes, that there were no cross-strikes, that there were approximately 40 on the jury panel with none being disqualified, that the jury was selected from the first 24 names drawn out of the hat, and that Whitworth's name was not placed in the hat. Appellant's Bill of Exception No. 1, approved by the trial court, among other things, states that neither plaintiff nor plaintiff's counsel offered any reason or reasons why Whitworth had been subpoenaed by plaintiff.

However, there is no contention or showing made by appellant that any objectionable juror was accepted by appellant by reason of the subpoenaing of Whitworth by appellee and the trial court's consequent excusal of Whitworth from the jury panel on the court's own motion, and it does not appear that appellant was compelled to take any jurors that were not acceptable to it, nor that the jurors were partial or prejudiced, nor that appellant was prejudiced or harmed by the action of appellee's counsel in question, and the action of the trial court in excusing the prospective juror Whitworth. Furthermore, there is no contention made by appellant in this case that the jury's verdict was not supported by the evidence.

Among the cases cited by appellant in support of its first and second points is the case of Smith v. El Paso & N. E. Ry. Co., Tex.Civ.App., 67 S.W.2d 362, 366, err. dism. In this case the court stated:

'Allowing more peremptory challenges than defendants were entitled to exercise constitutes error, and is reversible error where, as here, appellant exhausted his challenges and, by reason of the number of challenges allowed and exercised by appellees, was required to accept on the jury former employees of the defendant railroad company, objectionable to plaintiff appellant, and which he desired to challenge. For that reason alone the case must necessarily be reversed.'

The distinction between the Smith case and the case at bar is obvious. In the Smith case the appellant was compelled to accept on the jury objectionable jurors (former employees of the defendant railroad company), and in the case at bar appellant was not required to accept any objectionable juror.

As a rule a judgment will not bereversed reversed for a trial court's error in allowing or refusing additional peremptory challenges unless the complaining party shows that he has suffered material injury by the court's action. He must show that an objectionable juror sat on the cause as a result of the court's action. Snow v. Starr, 75 Tex. 411, 12 S.W. 673; Wolf v. Perryman 82 Tex. 112, 17 S.W. 772; Gusset v. Nueces County, Tex.Com.App., 235 S.W. 857, (opinion adopted by Tex.Sup.Ct); Ralston v. Toomey, Tex.Civ.App., 246 S.W.2d 308, err. ref., n. r. e.

In Gusset v. Nueces County, supra, 235 S.W. 857, 861, it was stated:

'It is well settled in Texas that each party to a civil suit in a district court shall be entitled to six peremptory challenges, and parties defendant asking judgment over against each other are within the rules. * * *

'Again, it is equally well settled that where the bill of...