Threadgill v. Hopson

• Decision Date: 30 September 1970
• Docket Number: No. 6106,6106
• Parties: Robert THREADGILL, Appellant, v. Ed HOPSON et al., Appellees.
• Court: Texas Court of Appeals

Page 538

458 S.W.2d 538

Robert THREADGILL, Appellant, v. Ed HOPSON et al., Appellees.

No. 6106.

Court of Civil Appeals of Texas El Paso.

Sept. 30, 1970.

Rehearing Denied Oct. 21, 1970.

Burnett & Childs, Jerry P. Childs, Richard J. Clarkson, Odessa, for appellant.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, John M. O'Quinn, Houston, amici curiae.

Stubbeman, McRae, Sealy & Laughlin, James G. Noland, Midland, for appellees.

OPINION

WARD, Justice.

This is a personal injury case where, by unanimous verdict in response to special issues, all twelve jurors acquitted the defendant-appellees of any wrong-doing. All twelve jurors further found that the wife of the plaintiff-appellant was contributorily negligent in two particulars, which acts of negligence were proximate causes of the accident. The jury unanimously answered the damage issue, 'None', where it inquired as to the personal injuries suffered by the appellant's wife. The jury verdict was received, filed without objection, and judgment was entered that appellant take nothing. We affirm the judgment of the trial court.

Appellant first centers his appeal around his one objection to the court's charge instructing the jurors that their answers to each special issue must be unanimous. The objection was to the effect that the jurors should have been instructed that, nine of them concurring, a verdict could be returned, the objection fairly following the pertinent language contained in Texas Constitution, Art. V, § 13, Vernon's Ann.St.Const.

In his brief the appellant reviews the history of the subject-matter relating to his objection which, together with his argument, may be summarized as follows: Art. V, § 13 of our Constitution took effect on April 18, 1876 and provides that in trials of civil and criminal cases, below the grade of felony, in the district court, nine members of the jury concurring may render a verdict. This presented a rule that took immediate effect upon the existence of the Constitution as the organic law of the State; and until the passage of Art. 2203, Vernon's Ann. Texas Revised Civil Statutes Annotated, effective on August 1, 1876, a verdict of nine jurors concurring was valid. Bowen v. Davis, 48 Tex. 101 (1877). This Act of the Legislature followed out the power committed to it by that same section of the Constitution, and it was not to enact a rule authorized by the Constitution, but to change or modify one established by it, if it should not prove acceptable to the people. After the passage of this Act, the unanimous verdict rule remained in effect until September 1, 1941, when it was repealed under the authority of the terms of Article 1731a, Texas Revised Civil Statutes Annotated. Appellant further contends that Rule 291, Texas Rules of Civil Procedure, which is in the same terms as Art. 2203, is totally ineffective and void due to the terms of Art. 5, § 13, supra, which by its own terms is always effective unless changed by the Legislature itself. The appellant then argues that by our Constitution, the exclusive method to change the nine-man rule is exclusively in the Legislature and by our basic law this cannot be delegated by the Legislature to the Supreme Court . In other words, after the repeal of Article 2203, there has been no statute in Texas which has been passed by the Legislature in compliance with Art. 5, § 13, to so change the Texas organic law which states that a nine-man verdict is permissible in civil cases. Thus, appellant has in various ways raised constitutional objections to the present validity of Rule 291.

From the state of the record before us, there is no reason to discuss the constitutional aspects of the case, and we feel that...