*1 Dunn, DUNN, A. M. Daniel Bruce b/n/f
v. al., et AND CO.
SEARS ROEBUCK Appellees.
No. Appeals
Court Texas. of Civil
Houston.
Sept. 19, 1963.
Rehearing 7,1963. Denied Nov.
732 boy
dent been nine years February old on 11. He had been: riding bicycle years. a two about He rode school, it to and from his which is located According about six blocks from his home. proficient to his father he had become riding. bicycle The riding he was a. one, it new a having been him as present. Christmas It was either a 24 inch Wohlt, Warren F. Hicks, & Dollahon bicycle, being, inch or 26 the evidence not Kronzer, Brown, Hill, Hicks, and Houston clear as to which. W. Steely, Abraham, & Watkins James Mr. Martin Re- for testified that driving he was (On Motion Kronzer, Houston on east White Oak Drive just and appellant. hearing), reaching Oxford Street he 25- was driving Houston, Giessel, Weitinger, Don Henry miles fifty hour. When he was about Barnett, Hous- Giessel, Talbert, & Cutherell feet from boy Oxford he saw the young appellees. ton, counsel, for of riding north on Oxford about fifteen feet of boy’s
south White The bicycle Oak. wobbling and it looked as boy if the could BELL, Chief Justice. very ride not He his well. took foot off the Dunn, the father Daniel Bruce A. M. accelerator so that at the time of the colli- individually next Dunn, suit and as brought sion he was going between 20 and miles 25 Roebuck son Sears friend of his per boy hour. The turned east on White Martin, damages to recover L. Co. V. and was riding Oak in the curb After lane. injuries the son sustained resulting getting on boy White Oak riding panel be- and a truck bicycle his when right. From another witness we learn Company and Roebuck longing Sears White Oak was 45 feet wide from curb Martin, employee, were L. by its V. driven curb. There was two parked, automobiles acquitted Martin The in collision. other, one behind the at the south curb found Dunn was negligence; any act of White Oak. The first one was 60: about peril prior the occurrence position of in a east feet of the east curb of Oxford. Mr. keep his Dunn question; found failed Martin said he boy watched the and angled' proper that this control and bicycle under his automobile to the left so he was collision; and cause of the proximate awas in the lane next to the center of White Oak. The court to be damages “Zero”. found boy As he overtook on aat appellees. rendered point about the middle of parked the second car, opposite boy saw the right win- injury to how only evidence The the cab dow of of the truck. The threw from Mr. Martin. comes occurred up pulled his hands and Martin ap- a head boy received Dunn to the truck left so that the tires on remember the occurrence. parently did his truck left of about were two feet on the afternoon occurred accident stripe. left center about 2:45 o’clock. The January officer point investigating of contact be- clear. day was impact 18 feet from the south point and the about truck tween He determined this Oak. the east curb line White Oxford curb east of feet by the rubber mark made sideward Drive in Houston. Oak on White Street bicycle tire. was first paved Contact running is a street Drive move Oak White wheel of the right rear truck and west and Oxford Street east generally right rear fender at Oxford with the north south. then generally runs bumper. right rear bumper height At the time of acci- street. graveled oppor- deprived appellant bicycle, damage but had and There was no challenges. tunity peremptory exercise there seemed twisted and handle bars were up the rubber slight roughing be a 2. The that no dam- answer of *3 the side of left end the guard on the of ages verdict resulted establishes that the the defects were no There handle bar. prejudice was the based on bias and because marks skid pavement. were no There shows dam- evidence substantial parked car the by the truck. The width ages. There feet. be about at the curb would jury’s 3. 21 and answers to Issues car parked between the would be 12 feet 23 (damage against issues) are so the over- parked if car was point impact the the whelming weight preponderance testimony no find against curb. We manifestly evidence as to wrong. be the car was. to curb showing close how at place said At one Mr. Martin 4. The Special answer to Issue parked his truck least feet between 1, boy posi- No. that the Dunn not in a 6be would truck of the The width cars. peril, tion is overwhelming straight at was driven If the truck feet. weight preponderance the evidence foot be a impact, left side its time as to be manifestly wrong and would show stripe. center the left of and a half to the answer was not based on the evidence just be- point Martin Mr. At one but was the prejudice. result of bias and he left, when his truck pulling fore hands, left 5. There is up support his no evidence to his boy throw saw the jury’s answer Special finding Issue No. 6 stripe. this If the center wheels were at in effect that V. L. Martin did not fail to 101/ n feet correct, about would be turn his truck person to the left as would a There cars. parked between him ordinary prudence. all, examina- from an at no indication ' truck, any con- that there was 6. That answer said issue is based tion on insufficient evidence shows the an- wheel. the rear forward of tact on the swer was based evidence but was boy he watched the Mr. Martin testified prejudice. result of bias and him he saw because continually after first Special 7. The answer boy very ride well. though could not finding No. 8 Martin Issue did not fail to danger of However, saw no testified he proper application of make the brakes has up boy throw until he saw the collision support no it. evidence there were He also testified his hands. using the north side White automobiles 8. The answer to such sup- issue is not several blocks. for a distance of Oak ported by sufficient evidence and was thus prejudice, the result of bias and and not the accident, still boy, after in the casa lying in the street astride the pointed two feet toward and about his head Special The answer to 9. Issue No. 10 blood There on center. finding Martin was not at an ex- or on the truck street but none speed support cessive rate of has no admittedly head boy received a severe evidence. expense was sub- and the medical to said sup- 10. answer issue is not stantial. ported by sufficient evidence and shows the prejudice. the result of bias answer was reversal, grounds as- following: serts the Special The answer Issue No. 11. appel- 1.Three concealed from finding keep failed to concerning proper lant information automobile col- control, under finds no sup- they family lisions or a member their port the evidence. sup- boy. Her is not husband did not hit the No one answer to said issue
12. The hospitalized medical treat- evidence. ported sufficient ment. No. Issue 13. The answer to be proper control
finding absence of We must now look to the asked evi- support in the cause, proximate finds no on voir dire to determine if were of dence. such a nature as to call for disclosure. sup- is not said issue The answer to Hicks, attorney appellant, ex- ported by evidence. sufficient plained jury panel the nature of the case, *4 is, that it an ac- involved automobile is that contention Appellant’s first panel a cident between truck of Sears Roe- trial a new granting in not erred trial court by bicycle being a ridden buck Co. and information. jurors three concealed because boy. explanations After other questions material, not here Hicks Mr. that Complaint is first made question panel a member: asked this Smith, counsel concealed juror, H. V. Polk, right now, you “All I believe Mr. bicycle when riding a he while fact that you your have no children but either years had an old or fifteen was about ten in an wife ever been involved automobile of trial Mr. Smith At the time accident. ”? interrupted The collision court then did not age. years He testified question generally that the be asked asked thought because he incident disclose the panel. Hicks then asked: whole Mr. reply in to to do so no occasion you family your “Either of or members of accident was questions asked. ”? in an involved automobile collision case. in this one involved similar to the then said: “Take the first row.” A court injuries involved. personal were no There Clark, spoke up Mr. and asked: “In- juror, bicycle and an auto a turn on He made ”? volving injuries or not Mr. Hicks re- hitting him and to avoid turned mobile plied: injuries.” “Involving Then Mr. Neither car automobile. “grazed” another any you Hicks said: “Second row — always thought he was re him. He hit ? injuries in collisions folks have automobile incident revealed the sponsible. Mr. Smith ”? ques- How about the third row Other appellant, Wohlt, attorney for to Mr. Hicks, they tions were asked Mr. but courthouse. leaving the they were inquiry. relevancy have no to our juror was another who Broussard Mr. Giessel, attorney appellees, Mr. then He did information. allegedly concealed commenced his voir dire examination. prior a months few not disclose Generally he stated that before stating what ran in hit a calf that automobile trial his purpose occurred not for the of convincing Weimar, Texas. him near front of panel, purpose but for the judging spent look- injured. He some time calf jurors’ background, he seeking in- and the owner. He was officers ing for background formation about their and busi- per about 40 miles hour. experience judge so he could ness who was qualified type Dorothy litigation. best this juror was Mrs. Hol- He The other appellees’ theory stated not disclose that few then case. did a She land. noted that jurors Then Mr. Giessel several trial her husband had a months they had indicated been involving boy a had involved on a accident minor He then stated he only law suits. that when she was selected as She where the in those forgotten interested were she had about it because juror a defendant, plaintiff or where it was minor. Her husband had told either it was somebody hurt got and was it but he did not discuss claimed seek- with her her about they got hurt. He ing money because then She denied at fault. that she knew who was seeking impartial parties were wobbling. was on a that was stated had to miss his he wanted automobile swerved fair jurors and a trial Too, “grazed” should another automobile. question on which ask another your injuries mind— were no involved. Mr. Smith “Is He then asked: reflect. had apparently forgotten the incident you by reason Have committed? soul but, stated, as he asked past, regardless questions from the experience in the some he saw no occasion incident. been, influenced to disclose the been might what it longer important— his conclusion we agree. With mind is no your where happens what psychiatrists us matter tell Broussard had a collision with *** you. time influences in our life appears injured. calf. It the calf was No Hicks and Mr. I seek determine What persons nor was reflected somebody here determine, whether seeks If, damage to his automobile shown. *** had an or a law suit. accident doubt, which we disclosure called in- serious had a child fact someone asked, the incident is so had, because this one juries such as minor and so unlike the we case before us pos- longer experience past-no some possible ap- can see no harm resulting * * * If *5 independent judgment? sesses pellant. in- past to you of something know you what other than fluence your judgment In order erroneous for or false room, please it to call in court heard the given par answers on voir dire to entitle a * * * you know if our attention. ty to a new trial there must have con been would your background that in something by juror. cealment the Childers Texas v. do to thing fair make it difficult—the Employers Association, Insurance Tex. 154 parties yourselves all to the and most of 88, 587; Thompson Quarles, 273 S.W.2d v. to call it to our attention.” 321, C.C.A., ref., 279 S.W.2d n. r. e. the If juror incident, has forgotten the there is of that the effect are the that view We concealment. Childers v. Texas Em dire above set out portion of the voir ployers Association, supra. Insurance Al panel or a any the if member to ask so, concealment can before be held to be family had ever had his or her member of present, questions the asked must be of such personal in which an automobile collision Thomp a nature as call for disclosure. by The narrative was involved. Quarles, supra; Tudor, son v. Tudor v. 311 questions asked Mr. Giessel 733, C.C.A., 559, S.W.2d ref. 158 Tex. 314 only effect, in addition to him were 793. S.W.2d involving law suits inquiry accidents or any- disclose injury, should that specified above, complains as background would affect in their that thing that the answers of the to certain is- jury a fair so could not be their judgment evidentiary support. sues are without With juror. exception issues, of the damage which specifically on, we will notice later Holland, no con- As to Mrs. probative support is evidence force to supports the the evidence cealment because the jury. answers court that she had implied finding of the incident where her husband’s forgotten have We substance of Too, we hit a think had automobile on how bearing all the evidence the accident asked called disclosure happened. appraising appellant’s points In personal in- collisions involving automobile specified, asserting, as above that could testimony the court From juries. contrary to certain issues are so answers injury in- there was no concluded have preponder weight and overwhelming to the volved. clearly as to ance the evidence be wrong, evidence, any must consider all had automobile we both Mr. Smith been supports answers Twenty-five years which that that collision. King’s against which great weight militates them. re Issue No. 6 is In Estate, preponderance Even Tex. of the am evidence. also S.W.2d I we, though opinion jurors, that the jury we been answer of the may differently jury, supported by held from the we Issue No. 15 is not I judg- substitute our evidence. would reverse the jury. jury find ment of Before we can set aside the Trial Court remand the ings by the insufficiently supported as case for a new being trial. contrary
evidence the must be so answers preponder weight overwhelming manifestly
ance of un the evidence as to be
just Bus clearly or wrong. Continental
System, C.C. Biggers, Inc. v. 322 S.W.2d ref.,
A., Appraising n. r. e. rules, we are light applicable of these are say unable the answers WILLIAMS, Individually Theril as Next weight overwhelming contrary Kay Williams, Appellants, Friend for preponderance of the evidence v. wrong. manifestly unjust clearly be MACATEE, INC., al., Appellees. et No. 16456. did answer “Zero” to damage each issue. The evi Appeals Court of Civil of Texas. damage. dence showed substantial How *6 Fort Worth. ever, present this does not reversible error Oct. jury because the found on sufficient evi guilty that the Dunn an dence Rehearing 8,1963. Denied Nov. contributory negligence act of which was a proximate cause of the collision and ac negligence.
quitted Martin of act of circumstances, such even had the
Under damages, the trial found substantial required
court would have been to enter the
judgment it did such enter. While damages,
answer of no when may damages, shows be cause for
suspicion that the answer was induced improper influence, improper
prejudice or may presumed prejudice not be
influence or acquitting answers the de
when negligence convicting
fendant of contributory negligence finds
plaintiff of South support in the evidence.
sufficient Andrade, 124 S.W. Lumber Co. v. Pine
ern Tex.Com.App.
2d Trial Court is af-
firmed.
COLEMAN, (dissenting). Justice my opinion It is dissent. respectfully I answer