Wise v. City of Abilene

• Decision Date: 17 May 1940
• Docket Number: No. 2017.,2017.
• Parties: WISE et al. v. CITY OF ABILENE.
• Court: Texas Court of Appeals

141 S.W.2d 400

WISE et al. v. CITY OF ABILENE.

No. 2017.

Court of Civil Appeals of Texas. Eastland.

May 17, 1940.

Rehearing Denied June 14, 1940.

Appeal from Taylor County Court; Carl P. Hulsey, Judge.

Suit by the City of Abilene against John C. Wise and Louis S. Wise, to condemn certain realty owned by the defendants, for the purpose of extending the plaintiff's airport grounds. From the judgment, the defendants appeal.

Judgment affirmed.

Ben L. Cox and Louis S. Wise, both of Abilene, for appellants.

Will Hair, Scarborough & Ely, and E. M. Overshiner, all of Abilene, for appellee.

GRISSOM, Justice.

The City of Abilene instituted this suit against John C. and Louis S. Wise, for the purpose of condemning 9.95 acres of land out of a 479-acre tract owned by defendants, for the purpose of extending its airport grounds. The value of the land condemned and damage to the remainder of the tract were the questions involved. The verdict fixed the value of the land taken at $400 and damage to the remainder of the tract at $938. From a judgment in accordance with the verdict, defendants have appealed.

Appellants' assignments of error Numbers 12 to 15, inclusive, are directed at the action of the court in permitting plaintiff's counsel, over defendants' objection, to ask the jury panel on voir dire examination as to whether any member had served as a juror or commissioner in the condemnation of land owned by defendants in the cases of (1) Western Union Co. v. John C. and Louis S. Wise; Lytle Water Co. v. John C. and Louis S. Wise; (3) Taylor Co. v. John C. and Louis S. Wise and Willis Norwood; and (4) Texas & Pacific Ry. Co. v. John C. and Louis S. Wise. Since each of said assignments and the bills of exception in support thereof are substantially the same, we shall specifically discuss only the first case mentioned above and the bill of exception tendered in support thereof, since it is illustrative of all the others.

Plaintiff's counsel was permitted to ask the jury panel whether or not any of them had served as a juror or commissioner in the matter of Western Union Co. v. John C. and Louis S. Wise, in the condemnation of certain lands owned by the defendants, in another proceeding. Defendants objected to said interrogation on the ground that said other proceeding was wholly immaterial and irrelevant, was between different parties and involved different lands, and that said interrogation was prejudicial and hurtful to the defendants and was resorted to by plaintiff's counsel for the purpose of attempting to prejudice the jury against defendants by causing the jury to believe that defendants were contentious and selfish and that said interrogation did not serve any useful purpose, because if any juror served as such juror or commissioner it would not be a disqualification to serve in the instant case. The court overruled said objections and permitted counsel to so interrogate the jury.

Defendants' bill of exception presenting the matter, as heretofore stated, was approved by the judge with the following qualification: "that the cause referred to * * * was a condemnation proceeding involving the valuation of and damages to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding. The question propounded was allowed for the purpose stated by counsel of enabling counsel for the city to exercise their peremptory challenges." The bills relative to the other proceedings were qualified as shown above, except the bill in the Lytle Water Co. proceeding recited: "the cause referred to * * was a condemnation proceeding involving the valuation of and damages to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding." Relative to the condemnation suit by Taylor Co., the qualification of the bill recited: "the defendants were parties to the cause mentioned in the above and foregoing bill and that the litigation referred to arose from the taking of a strip of land for highway purposes out of a tract situated comparatively near the land involved in this proceeding and near enough to have a reasonable relationship as to the fixing of a valuation." And, in the Railway case, "the defendants by their pleadings herein had claimed damages to a tract of land adjoining the airport and which they claimed resulted from the uses to which the airport would be devoted and thereby directly putting in issue the value of said adjacent property. The other cause referred to in the above and foregoing bill likewise involved a controversy with the defendants as to a valuation of a part of said adjacent property." The qualification to each bill showed the question was permitted to enable plaintiff to exercise its peremptory challenges. The bills were accepted as so qualified, and defendants are bound by the qualifications.

Article 2134, R.S.1925, provides, in part: "The following persons shall be disqualified to serve as jurors in any particular case: * * * 5. Any person who has sat as a petit juror in a former trial of the same, or of another case, involving the same questions of fact."

"As a rule * * * where the two cases arise out of the same transaction and involve the same issues or are to be determined upon the same evidence, the juror is incompetent; and, if practically the same question is to be decided again, it is immaterial whether or not the parties are identical, or whether the same or other and additional witnesses are to be examined. So also, if during the continuance of a case any of the jurors are impaneled and return a verdict in another case in which the same issues are involved, they are not competent to proceed with the trial of the first case." 35 C.J. 325, sec. 343.

"The purpose of the inquiry is to elicit facts that will enable counsel to exercise the right of peremptory challenge in an intelligent manner as well as to ascertain that jurors possess the legal qualifications and are not, by bias or otherwise, disqualified to try the particular case. * * * The right is to be liberally construed and some latitude should be allowed, it being a proper consideration whether the injustice of a verdict rendered by a jury one or more of whom are prejudiced will not outweigh any harm that may ensue from permitting the question.

"`As a general rule great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, and this court does not look with favor on any unreasonable limitation of this right.'" 26 Tex.Jur. 644, 645, sec. 81.

"Since the right of examination is predicated on the obtaining of information with a view to using peremptory challenges, it follows that the examiner is not confined to questions which might lead to disqualifying answers. Indeed, since the motive for using a peremptory challenge may not be inquired into, neither may the purpose of the particular question be asked of counsel. And so long as it appears that the question may lead to an answer useful to be considered when exercising the peremptory challenges, the approved practice is to allow the question. This course gives counsel considerable latitude, but that is what the law intends." 26 Tex.Jur. 647, sec. 83.

"A judgment will not be reversed for an erroneous ruling on the conduct or scope of the voir dire unless the right of examination has been substantially denied or unless it affirmatively appears that the complaining party has thereby suffered injury." 26 Tex.Jur. 661, sec. 96.

Since the bills of exception tendered in support of said assignments, as qualified by the trial court and accepted by the defendants, show that the other condemnation proceedings inquired about involved "the valuation of and damage to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding", or involved the valuation of and damage to adjacent tracts of land owned by defendants; and since the determination of the value of and damage to defendants' same, or adjacent, land, constituted the purpose of this suit it is at least not clearly shown that Subd. 5, of Art. 2134, is inapplicable. But, whether a member of this jury panel, who had served either as a commissioner or juror in a condemnation proceeding involving the questions of the value of and damage to a part of the same or an adjacent tract of land owned by the defendants was disqualified as a juror under Art. 2134 or not it was certainly a matter of material inquiry whether they had so served in such prior proceedings. If one of said jury panel had answered that he had sat as a juror, or served as a commissioner, in one of said prior proceedings, if such answer had not shown his disqualification under Art. 2134, as a matter of law, a question not here necessary to determine, then certainly it would have been proper to further inquire as to whether or not from such experience the prospective juror had an opinion as to the value of the property in question in this proceeding, etc. If such prior service did not disclose the juror's absolute disqualification then it became material, in that the court might, in his discretion, excuse the juror, or the plaintiff might peremptorily challenge him. The record does not disclose error under the recognized authorities relevant to the question. Houston & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670; Galveston, H. & S. A. R. Co. v. Contois, Tex.Civ. App., 279 S.W. 929, 935; Lassiter v. Bouche, Tex.Civ.App., 41 S.W.2d 88, 90; 26 Tex.Jur. 645; Goble v. State, 42 Tex. Cr.R. 501, 60 S.W. 968; Garcia v. State, Tex.Cr.App., 63 S.W. 309; Ross v. State, 53 Tex.Cr.R. 162, 109 S.W. 153; Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Darnaby v. State, 108 Tex.Cr.R. 408, 1 S.W.2d 615; Missouri, K. & T. Ry. Co. of Texas v. Rogers, Tex.Cix.App., 141 S.W. 1011...