Mary Jan Vollintine Skeen, et vir v. John William Petty, et al--Appeal from 66th District Court of Hill County

NO. 10-90-040-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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MARY JAN VOLLINTINE SKEEN, ET VIR

Appellants

v.

JOHN WILLIAM PETTY, ET AL

Appellees

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From 66th Judicial District Court

Hill County, Texas

Trial Court #26929

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O P I N I O N

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This is an appeal from a jury verdict. Plaintiff-Appellants Mary Jan Vollintine Skeen and husband Billy Walter Skeen brought this suit against Defendant-Appellees John William Petty, Leslie Gilliam, and Brazos Electric Power Cooperative, Inc., to recover damages for personal injuries Mrs. Skeen allegedly sustained as a result of a motor vehicle accident which occurred in Hill County, Texas, on or about December 8, 1986. The case was tried to a jury which resulted in a 10-2 verdict charging Mrs. Skeen with 50% liability and awarding her as total damages the sum of $520.66.

After verdict, Plaintiff-Appellants filed a Motion for Judgment requesting the trial court to enter judgment in favor of Plaintiff-Appellants in the amount of $260.33 (same being one-half of the total damages of $520.66 awarded by the jury) plus pre-judgment interest in the amount of $71.24 or a total of $331.57 and costs. Pursuant to this motion the trial court entered judgment in favor of Plaintiff-Appellants in the above amounts as prayed for.

Plaintiff-Appellants appeal from the trial court's judgment on a single point of error as follows:

"The trial court erred in overruling Appellants' Motion for New Trial due to the fact that a member of the jury failed to disclose on voir dire, after being asked if anyone knew the defense attorney, that he was personally acquainted with and had actually retained the services of the defense attorney, Jearl Walker. Had this information been divulged on voir dire, Plaintiffs would have exercised one of its peremptory challenges to excuse the juror."

Appellants assert that the during voir dire examintion of the jury panel, one venireman, Nolan Cole, failed to respond to an inquiry by Appellants' counsel whether anyone on the panel knew the defense attorney, Mr. Jearl Walker. This point is denied and contested by Defendant-Appellees' sworn denial that the jury panel was ever asked whether any member knew the defense counsel.

The record before us does not contain the court stenographer's recording of the voir dire examination.

After the verdict had been received by the trial court on September 27, 1989, and while the jurors were filing out of the courtroom, Juror Nolan Cole shook hands with the defense counsel, Mr. Walker, and left the courtroom. Plaintiff's counsel, Mr. Russell, asked the defense counsel, Mr. Walker, what was said by Juror Cole and he was told, "Mr. Cole asked me, `Do you remember me?" and I said, `No,' and Mr. Cole then said, `Twenty-two years ago you handled an adoption for me in Fort Worth."

Defendant-Appellees set up in their brief eight (8) counterpoints to Plaintiff-Appellants' single point of error; however, we deem it necessary to discuss only two grounds for affirmance of this case.

In the first place, the trial court's judgment appealed from was entered in the form and substance requested by Plaintiff-Appellants by way of Plaintiff-Appellants' own Motion for Judgment. In other words, Plaintiff-Appellants not only consented to the judgment entered, but actually requested that it be entered.

It is a well-settled principle of law that a party cannot appeal from or attack a judgment to which he has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. The rationale of such a rule is that a party will not be allowed to complain on appeal of an action or filing which he invited or induced. Having consented to this action of the court in entering judgment, he thereby waives all errors committed or contained in the judgment, thus having nothing which could properly be considred by an appellate court, except want of jurisdiction. See Gillum v. Republic Health Corp. (Dallas CA 1989) 778 S.W.2d 558, no writ, and the cases cited therein at page 562. Stated differently, a party who induces the court to render a certain judgment cannot later complain of such judgment. R. B. Butler Inc. v. Henry (Waco CA 1979) 589 S.W.2d 190, NRE; Rogge v. Gulf Oil Corp. (Waco CA 1961) 351 S.W.2d 565, NRE; Smith v. Chipley (Comm.App. 1929) Opinion adopted by the Supreme Court, 118 Tex. 415, 16 S.W.2d 269.

Aside from the above, when we consider that this appeal is based upon the single point of error that during the voir dire examination of the jury panel, that one panel member, Nolan Cole, failed to respond to an inquiry by Appellants' counsel as to whether anyone on the panel knew the defense attorney, it is significant that this point is contested and denied by the Appellees' sworn denial that the jury panel was ever asked whether any member knew the defense counsel. Here we have a critical fact issue as to whether this question was ever asked of the jury panel, and the record before us is devoid of a statement of facts concerning any of the voir dire examination. Nolan Cole was not called as a witness in the hearing on the motion for new trial. Only one juror, Allen Davis, testified at the hearing on motion for new trial, but his testimony is sketchy and somewhat equivocal.

Where no statement of facts of the voir dire is filed, every presumption must be indulged in favor of an in support of the trial court's findings and judgment. Rapid Transit Lines Inc. v. Doyle (Houston 14th CA 1970) 450 S.W.2d 767 at page 769, no writ. The hearing on motion for new trial was recorded by the court reporter; however, but here again there was a disputed issue as to whether the question on voir dire was ever asked concerning whether any of the panel knew Jearl Walker. By overruling the Plaintiff-Appellants' Motion for New Trial, the trial court impliedly found that the question had never been asked of the panel. The trial court had the right to resolve this disputed fact issue.

We overrule Appellants' point of error and affirm the judgment of the trial court.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Chief Justice McDonald (Retired)

and Justice James (Retired)

Affirmed

Opinion delivered and filed January 24, 1991

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