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GRAHAM HOLMES v. C. D. COOLEY ET AL. (12/04/57)

December 4, 1957

GRAHAM HOLMES, APPELLANT,
v.
C. D. COOLEY ET AL., APPELLEES



Author: Gray

GRAY, Justice.

Appellee sued appellant for damages suffered to his person and to his property in an automobile collision. Appellant answered and filed a cross action for damages against appellee and his alleged employer, W. E. Medlock, alleging that at the time of the collision appellee was acting in the course of his employment.

Appellee and appellant each alleged that the collision and resulting damage was proximately caused by the negligence of the other. W. E. Medlock answered and adopted the allegations of appellee in his petition.

The facts show that appellee was driving south on College Avenue in the City of Lubbock near the intersection of College Avenue and Auburn Street preparatory to making a left turn on to Auburn Street when his automobile was struck from behind by one driven by appellant. Appellee's automobile was struck on its left front door, and appellee said he was stopped at the intersection.

College Avenue runs north and south and has two lanes for southbound traffic and two for northbound traffic. These lanes are separated by a painted yellow line, or center stripe. At or near its intersection with Auburn Street there is a painted "island." Auburn Street runs east and west, it is a two way street and its intersection with College Avenue from the west is south of its intersection from the east.

The suit was originally filed in the 72nd district court and two mistrials were had. At the second trial an instructed verdict in favor of W. E. Medlock was returned but no judgment on the verdict was entered in that court. Afterwards the cause was transferred to the 140th district court where judgment on the instructed verdict was rendered and entered and a jury trial was had on appellee's suit and appellant's cross action. The jury found that appellant was guilty of various acts of negligence proximately causing the collision. The jury found that in crossing College Avenue appellee did not fail to grant the right of way to overtaking southbound traffic; that before moving his automobile into or across the lane for southbound traffic next to the center line on College Avenue appellee first ascertained that he could do so safely; that before attempting to make the left turn into Auburn Street appellee was driving south in the lane next to the center stripe on College Avenue, and that immediately prior to the collision appellee did not fail to keep a proper lookout for approaching automobiles. $9,000 was awarded appellee for personal injuries and by stipulation $488 was the agreed property damage. A judgment for appellee for $9,488 was rendered.

Appellant's first five points complain that the jury was guilty of gross misconduct in discussing: insurance; attorney's fees; the wealth of appellant; their outside experiences, and awards of damages in other lawsuits, and sixth, that all of the above acts of misconduct considered together constitute reversible error.

At the hearing on appellant's motion for new trial ten jurors testified. We do not think it is necessary to set out the testimony of the jurors relative to the discussions had in the jury room, but we will say that it appears that the discussions were had and that they were heard by at least some of the jurors. The vital questions presented are: Were the discussions had before or after the jury had reached a verdict and it had been signed by the foreman? Were any answers changed after the discussions were had? On the question of the time the discussions took place the testimony is in conflict. Some of the jurors were positive in their statements that the verdict had been reached, that it had been signed by the foreman, that he then pushed it back on the table before him, and that the discussions were had between the time the verdict was signed and the time that it was carried into the courtroom. They also said that no answer was changed after the discussions. Appellant urges the circumstance and the testimony of two jurors: (1) that the foreman signed the verdict "just before they came back into the courtroom" and (2) that the only time available for discussions after the verdict was signed and the time that the foreman knocked on the courtroom door was a "couple of minutes."

As noted there was a conflict in the testimony of the jurors as to when the discussions took place. This conflict presented a question to be resolved by the trial court. If we concede that the trial court could have found that the discussions occurred before or after the verdict as he may have concluded from the evidence, then by overruling the motion for new trial he impliedly found that the discussions took place after the verdict was reached and that the verdict was not thereafter changed. Since such findings have support in the evidence they are binding here. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. St. Paul-Mercury Indemnity Co. v. Bearfield, Tex.Civ.App., 296 S.W.2d 956. Er. ref., N.R.E. If the alleged misconduct occurred after the verdict was reached, after it was signed by the foreman and no answer was changed after the discussions were had, it cannot be said that the misconduct was material to the verdict even though it occurred between the time the verdict was reached and signed and the time it was accepted by the trial court. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143.

The circumstance raised by the testimony of the two jurors mentioned supra merely presented a question for the trial court along with the other evidence.

Appellant's point seven is:

"The Court erred in dismissing Cross-Defendant Medlock, based upon an instructed verdict in previous trial which resulted in a mistrial."

We recognize that a judgment followed the instructed verdict as a matter of law. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705. We are also cognizant that the appeal bond before us is payable to appellee, C. D. Cooley, and it in no way undertakes to protect the rights of W. E. Medlock. However there is no motion to dismiss the appeal on this ground and we have jurisdiction by reason of the defective appeal bond to determine point seven. Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. We will decide the point on the basis of the facts and jury findings before us.

Appellant argues that the order of the 140th district court discharging Medlock has "no foundation ...


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