Travelers Ins. Co. v. Stevens

• Decision Date: 22 June 1977
• Docket Number: No. 1572,1572
• Citation: 553 S.W.2d 232
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. Geraldine J. STEVENS, Individually and as Administratrix of the Estate of Louis Morris Stevens, Deceased, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 232

553 S.W.2d 232

The TRAVELERS INSURANCE COMPANY, Appellant, v. Geraldine J. STEVENS, Individually and as Administratrix of

the Estate of Louis Morris Stevens, Deceased, Appellee.

No. 1572.

Court of Civil Appeals of Texas, Houston (14th Dist.).

June 22, 1977.

Rehearing Denied July 13, 1977.

Robert A. Rowland, III, Vinson & Elkins, Houston, for appellant.

O. Joseph Damiani, Houston, for appellee.

CIRE, Justice.

Defendant in a suit to recover payments under an insurance policy appeals from a judgment for plaintiff, presenting, inter alia, the question of the propriety of the "dynamite" charge in Texas.

On October 21, 1973 Louis Morris Stevens was killed when the automobile he was driving crashed head-on into a bridge abutment in Brazoria County. Appellee Geraldine J. Stevens, individually and as administratrix of the deceased's estate, demanded payment of appellant Travelers Insurance Co. and other companies on policies insuring the life of the deceased. Appellant and the other companies refused to pay, contending the deceased committed suicide, an event which limited the companies' liability or excluded it entirely. Appellee then sued the companies for payment.

The case was twice tried before a jury. Evidence was presented for five days in the first trial, and a mistrial was declared after the jury was unable to reach a verdict. At the second trial, the statement of facts shows strongly conflicting evidence was presented over the course of four days on the question of whether the deceased died by accident or committed suicide.

The case was submitted to the jury on two special issues inquiring whether the death was caused by (1) accident or (2) suicide. The jury began deliberations late Friday afternoon and, after some four hours, the foreman sent a note to the court, explaining that the jury had been deadlocked eight to four for well over an hour, that a poll of the jurors indicated there was no likelihood of a change, and requesting instructions from the court.

The appellant's bill of exceptions reveals that the court discussed the jury's note in chambers with counsel and considered a number of alternatives, including a sample "dynamite" or "Allen" charge intended to urge the jurors to reach a verdict. Appellant's counsel announced to the court that use of the supplemental charge would be detrimental to appellant and expressed his intention to object if the charge were given to the jury. The conference in chambers concluded without the court advising counsel of what action it intended to take. The court then gave to the jury an oral, supplemental charge which varied from the sample read in chambers. Contrary to rule 286, Texas Rules of Civil Procedure, the charge was not in writing. The charge was not reported, but the judge later dictated his recollection of it into the record nunc pro tunc and then modified it by granting in part the "attempt to recollect the Court's additional statements" filed by appellant's counsel as part of its bill of exceptions. The charge as modified read:

Ladies and Gentlemen of the jury, I have your note that for the past hour you have been deadlocked by a vote of 8 to 4. You request further instructions. This Case has been ably tried by lawyers, experienced, of long standing, and in the interest of justice, if you could end this litigation by your verdict, you should do so.

What is more, ending it will meet with the approval of the Court. I don't mean to say by that that any individual person on the jury should yield his own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at the verdict which justly answers the consciences of the individuals making up the jury. A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. He should not surrender any conscientious views founded upon the evidence unless convinced by his fellow jurors of his error.

It has cost the taxpayers of Harris County considerable expense to have this case tried before a Jury over the past week.

I am satisfied ladies and gentlemen that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot arrive at an agreement. It will take considerably more time before anyone can satisfy me as to that. Accordingly, I return you to your deliberations.

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