Triangle Cab Co. v. Taylor

• Decision Date: 23 January 1946
• Docket Number: No. A-703.,A-703.
• Parties: TRIANGLE CAB CO. v. TAYLOR.
• Court: Texas Supreme Court

192 S.W.2d 143

TRIANGLE CAB CO. v. TAYLOR.

No. A-703.

Supreme Court of Texas.

January 23, 1946.

Rehearing Denied February 20, 1946.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Allen C. Taylor against the Triangle Cab Company for personal injuries sustained in a collision between a motorcycle on which plaintiff was riding and a taxicab driven by defendant's employee. To review a judgment of the Court of Civil Appeals, 190 S.W.2d 755, affirming a judgment for the plaintiff, the defendant brings error.

Affirmed.

Robert L. Holliday and Harold L. Sims, both of El Paso, for petitioner.

Abner S. Lipscomb, Tom R. Files, and Kemp, Smith, Goggin & White, all of El Paso, for respondent.

SLATTON, Justice.

Allen C. Taylor recovered a judgment for personal injuries and medical expenses against Triangle Cab Company. The El Paso Court of Civil Appeals affirmed the judgment of the trial court. 190 S.W.2d 755. Writ of error of the cab company was granted by this court.

Petitioner complains of the action of the trial court in failing to declare a mistrial because of the action of the trial court in permitting a blackboard to be sent to the jury room while the jury was deliberating on its verdict.

During the opening argument of Taylor's counsel to the jury, counsel stated to the jury that in his opinion, according to the evidence, they would be justified in answering special issues 1 to 16, inclusive, "Yes". He went to a blackboard which was situated near the jury box in the court room, and with chalk wrote thereon in large words and figures "1-16 inc. Yes". When the jury was ready to retire and consider their verdict the bailiff approached the bench and the court handed him the exhibits and the charge. The bailiff then asked the court if the blackboard should go to the jury room and the court instructed him to take it into the jury room. After the bailiff conducted the jury to the jury room he returned to the court room and carried the blackboard into the jury room and placed it in full view of the jury, where it remained during the deliberations. Counsel for petitioner were present at the counsel table in the court room when the jury was retired and one of them was present in the court room when the blackboard was carried out. Counsel did not hear the conversation between the court and bailiff. Counsel did not observe the bailiff when the blackboard was carried out of the court room. Thereafter, one of counsel for petitioner noticed the absence of the blackboard in the court room and learned from the court that it had been sent to the jury room. Thereupon he moved the trial court to discharge the jury and declare a mistrial. The motion was overruled. Evidence was heard on the motion for a new trial. The trial court, after hearing the testimony of all members of the jury and the bailiff, made the following findings: "Every member of the jury observed the bailiff bring the blackboard into the jury room and place it on the floor against one of the walls of the room. No member of the jury observed the writings or notations or markings on the blackboard at any time during its deliberations, and no member of the jury referred to the blackboard for any purpose during the deliberations, and no member of the jury refreshed his memory by observing any notations upon the blackboard."

The sending of the blackboard with the words and figures "1-16 inc. Yes" written thereon to the jury room while the jury was deliberating on its verdict was a violation of Rule 281, Texas Rules of Civil Procedure. The source of the rule is former Article 2193, Vernon's Annotated Civil Statutes. The question of where the burden of proof rests in a situation like this is not presented, for the reason that both parties to this suit tendered some members of the jury as witnesses on the motion for a new trial and all of them testified. The trial court upon their testimony found as we have stated above. According to the finding of the trial court, which was approved by the Court of Civil Appeals, no possible harm could have resulted from the error of the court in sending the blackboard to the jury room with the notations written thereon. West v. Houston Oil Company of Texas, 56 Tex.Civ.App. 341, 120 S.W. 228, writ refused. We have carefully considered the evidence offered on the motion for new trial and conclude that the finding has support in the evidence. We do not have a case where the jury admitted overt acts of improper conduct during their deliberation, but testified that they did not consider such improper conduct in arriving at their verdict. Sproles Motor Freight Lines, Inc., v. Long, 140 Tex. 494, 168 S.W.2d 642. It affirmatively appears in this case that no harm to the cab company resulted from this error.

Petitioner's second point involves the discussion of insurance by the jury during their deliberations on the verdict. The trial court found from the testimony heard on the motion for a new trial as follows:

"After all of the questions had been answered, the Foreman had signed the verdict, and requested the Bailiff to notify the Court that the jury was ready to report, substantially the following discussion about insurance was had: Some juror inquired as to whether the Defendant might have had insurance, to which another juror stated that he understood that all taxicabs were required to carry insurance. Another juror then remarked that if Defendant had insurance in the company...