Smith v. Morgan , 235 S.W.2d 938 ( 1951 )

MURRAY, Chief Justice.

. This suit was instituted by W. C. Smith as plaintiff against J. S. Morgan as defendant in the County Court of Jim Wells County, seeking to recover damages alleged to have been sustained by plaintiff when his automobile driven by him" collided with an automobile being driven by J. S. Morgan. -The trial was to a jury and resulted in a judgment that plaintiff take nothing from which judgment W. C. Smith has prosecuted this appeal.

Appellant’s first point -presents the contention that reversible error was committed in the selection of the jury. The evidence shows that the attorneys for the plaintiff and defendant were each furnished with a list of the prospective jurors, and after they had made their challenges the County Clerk and County Judge looked over the list, and the County Judge, in effect, exercised one -challenge himself. Thus one man' who would otherwise hav'e been on the jury was left off and'another man taken in his place: Neither the attorney for the plaintiff nor the attorney--for the defendant knew what happened, although it was done in op.en court and they could have discovered what 'happened if they had seen fit to check the list. Before the jury read their verdict the County Judge informed the attorneys that he had exercised one challenge, but neither attorney at that time moved for a mistrial and the jury was permitted to render its verdict without complaint from either side. We overrule this point. The attorney for appellant was not diligent in that he failed to discover that a qualified juror had been improperly excused from the jury. He does not now contend that as a result of this conduct on the part of the judge he was required to accept an obnoxious juror. Furthermore, by his failure to move for a mistrial when he was informed as to what -had happened he waived the point. Granger v. State, Tex.Cr.App., 31 S.W. 671; Anderson v. State 142 Tex.Cr.R. 384, 154 S.W.2d 482, 483; Smith v. State, 123 Tex.Cr.R. 47, 57 S.W.2d 132; Rule 434, Texas Rules Civil Procedure.

Appellant’s next point is that the court erred in overruling his objection to Special Issue No. 3, to the effect that said issue was duplicitous. We overrule this contention because appellant did not make any written objections to the charge, as is required by Rule 272, T.R.C.P.

Appellant’s third point. is overruled for the same reason.

Appellant’s fourth point is that the jury’s answer to Special Issue No. 19, to the effect that appellant had not sustained any damage was contrary to the undisputed evidence. We overrule this contention. By the time the jury had reached this issue they had found that the defendant was not guilty of negligence proximately causing plaintiff’s damage in any of the respects inquired about, and having done so we may presume that the jury, by their answer to Special Issue No. 19, meant to find that plaintiff was not entitled to recover any damages, rather than that they were actuated by bias or prejudice in answering this issue. Harrison v. Missouri K. T. R R. Co., Tex.Civ.App., 89 S.W.2d 455; Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Guerrero v. Wright, Tex.Civ.App., 225 S.W.2d 609; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869. Furthermore, in connection with this issue, the judge instructed the jury in effect that the damage would be the reasonable market value of plaintiff’s automobile immediately prior to said collision and the reasonable market value immediately after the collision. The evidence was not sufficient to support a finding of what the difference in market value would be, and therefore the jury was justified in answering Issue No. 19, none, even though the plaintiff did testify as to the cost of having the car repaired.

By appellant’s last point he raises the question that the trial judge should have declared a mistrial because the jury answered all special issues submitted to them as to defendant’s negligence in the negative, and also answered all special issues submitted to them as to plaintiff’s negligence in the negative, and then, in answer to Special Issue No. 18, found that the collision was not an unavoidable accident. •The answers of the jury to these special issues are not in irreconcilable conflict and the trial judge properly refused to grant the mistrial. There were acts of negligence on the part of the plaintiff and the defendant alleged in the pleading which were not submitted to the jury, and we may presunie that the jury, in answering Issue No. 18, may have concluded that one of the alleged acts of negligence of the parties which had not been submitted to them was a proximate cause of the collision, and therefore that the collision was not an unavoidable accident. Especially is this true where no statement of facts relating to these acts is brought up with the record. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Big Six Oil Co. v. West, Tex.Civ.App., 137 S.W.2d 950; Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473; Littlerock Furniture Mfg. Co. v. Dunn, Tex.Sup., 222 S.W.2d 985. Furthermore, it is apparent that the plaintiff could not recover in view of the answer of the jury to the question, regardless of bow they answered Issue No. 18. Having found that the defendant was not guilty of any acts of negligence, it became immaterial whether the collision was an unavoidable accident, and, regardless of how the jury would have answered this issue, the plaintiff could not recover. Under such circumstances a mistrial should not be ordered. Farmer v. Denton, Tex.Civ.App., 231 S.W.2d 908; Littlerock Furniture Mfg. Co. v. Dunn, Tex.Sup., 222 S.W.2d 985; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869; Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368.

Accordingly, the judgment of the trial court is affirmed.