Whited v. Powell

• Decision Date: 04 January 1956
• Docket Number: No. A-5270,A-5270
• Citation: 285 S.W.2d 364,155 Tex. 210
• Parties: Andrew WHITED, Petitioner, v. Charles Franklin POWELL et ux., Respondents.
• Court: Texas Supreme Court

Page 364

285 S.W.2d 364

155 Tex. 210

Andrew WHITED, Petitioner, v. Charles Franklin POWELL et ux., Respondents.

No. A-5270.

Supreme Court of Texas.

Jan. 4, 1956.

Elton Gilliland, Hartman Hooser and James Little, Big Spring, for petitioner.

Runge, Hardeman, Smith & Foy, San Angelo, for respondents.

WALKER, Justice.

The parties will be referred to as they were designated in the trial court. The plaintiffs, who are husband and wife, sued to recover damages which they sustained in a street intersection collision between the automobile driven by the husband and occupied by the wife as a passenger and the vehicle operated by defendant. Judgment in favor of the defendant was entered by the trial court on the verdict of the jury. The Court of Civil Appeals has reversed and remanded the case for a new trial on the grounds of jury misconduct. 277 S.W.2d 819. We have concluded that the overt acts upon which the Court of Civil Appeals based its judgment do not constitute misconduct and that the judgment of the trial court should be affirmed.

In their answers to special issues, the jury found that the collision was proximately caused by the primary negligence of the defendant in driving at an excessive speed, in failing to yield the right of way, in failing to keep a proper lookout, and in failing to have his vehicle under proper control, and by the contributory negligence of the plaintiff husband in failing to stop before entering the intersection, in failing to keep a proper lookout, and in failing to have his car under proper control. In response to Special Issue No. 10, the jury found that immediately prior to the collision the plaintiffs occupied a position of peril. Special Issue No. 11, which inquired whether the defendant discovered that plaintiffs were in a position, of peril within such time and distance that by the exercise of ordinary care and the use of all means at his hand consistent with the safety of himself, his passenger and his automobile, he could have avoided the collision in question, was answered in the negative. The jury also determined that the collision was not the result of an unavoidable accident, and that the plaintiffs sustained damages in the amount of $4,500.

While the jury was considering Special Issue No. 11 and was divided as to the proper answer thereto, the juror Elliott, in connection with his discussion of the evidence said, 'We can't answer that 'Yes'; if we do it will be saying this boy is the same as a murderer. I won't vote to make a criminal of the boy.' Thereupon the juror Lloyd requested that he be permitted to read the question again, and after doing so said, 'Well, yes, I don't believe the boy deliberately run them people down; I don't think that.' After some further discussion, the nature of which is not shown by the record, Lloyd and at least one other juror, who had been voting for an affirmative answer to the issue, changed their votes, and the issue was answered in the negative.

No one was killed in the collision, and there is no evidence indicating that the injuries sustained by the plaintiffs might result in death. Anyone hearing the statement made by the juror Elliott and knowing the circumstances of the case could not fail to understand that his reference to murder was simply a figure of speech. It is obvious that the only thoughts which he intended to express, and the only impressions which could reasonably have been received by the other jurors from the statement he made, are that an affirmative answer to Special Issue No. 11 would be equivalent to finding (1) that the defendant deliberately ran into the plaintiffs, and (2) that the defendant was guilty of criminal misconduct. The statement made by the juror Lloyd after again reading the question indicates that he was impressed by the first of these implications.

It is true, of course, that the conduct of one who, after discovering and realizing the peril of another in imminent danger of being injured, fails to use ordinary care to avoid injuring such other person, is very nearly the equivalent of deliberate and intentional misconduct. Sugarland Industries v. Daily, 135 Tex. 532, 143 S.W.2d 931. It is not, however, the exact equivalent. The jury was expected to return affirmative answers to the discovered peril issues if it believed that the collision was proximately caused by the negligent failure of the defendant, after discovering the peril of the plaintiffs, to use means by which the collision could have been avoided. The plaintiffs did not have the further burden of proving that the defendant acted deliberately or intentionally. It is clear, therefore, that the statement made by Elliott conveyed to the other members of the jury an erroneous interpretation of Special Issue No. 11.

There is no indication that either Elliott or Lloyd possessed any unusual experience or education qualifying either of them as an expert on the meaning of the English language or on the law, or that either of them represented himself to be an expert on such matters. We must assume that Elliott was simply an average juror who, after reading the issue on discovered peril, expressed the opinion that an affirmative finding would be equivalent to saying that the defendant deliberately ran into the plaintiffs. Juror Lloyd, another apparently average juror, insisted on reading the issue again, and after reading it concurred in Elliott's interpretation. It is not suggested that any facts outside the record were discussed, and there is nothing in the record to indicate that the two jurors reached their conclusion by any means other than by reading and studying the issue in question, together with the facts in evidence. We regard this as a pure case of an express misconstruction of the charge of the court.

The parties have not cited and we have not found a case in which the exact question was decided by this Court. In Kindle v. Armstrong Packing Co., Tex.Civ.App., 103 S.W.2d 471 (no writ), while the jury was divided nine to three in favor of an affirmative answer to the proximate cause issue, one of the jurors argued at length that the term 'proximate cause' means the whole cause. He also represented himself as something of an expert, stating that he had served on juries, had been around the court house, and had come in contact with the words or their meaning. After further deliberation the jury agreed that the term means the whole cause, and returned a negative answer to the issue. It was held that this did not constitute jury misconduct.

The case of Whelan v. Henderson, Tex.Civ.App., 137 S.W.2d 150, 152 (writ dis. judg. cor.) was decided two years later. There the foreman stated to the other members of the jury that "the way I always understood the charge was that if there was any doubt, that it must be given to the defendant". The jurors then agreed that the facts against the defendant must be established beyond a doubt as in criminal cases, instead of by a preponderance of the evidence, and answered the issues favorably to the defendant. The judgment of the trial court on the verdict was reversed on the ground that these facts showed misconduct which controlled the verdict of the jury, but the appellate court was of the opinion that other errors had been committed in the trial of the case. On motion for rehearing, the court apparently recognized that the holding of the Kindle case is applicable to an express misconstruction of the court's charge, but said:

'* * * We think it apparent that the conduct of the jury in the instant case was an effort of the jury to follow its own method of reasoning rather than failure to properly understand and apply the court's charge on preponderance of the evidence.

'Here, the evidence of the jurors shows the jury was not discussing any part of the court's charge, they were not trying to arrive at the meaning of the 'preponderance of the evidence,'...