Home/Fifth Circuit/Safeway Stores, Inc. v. Joseph W. Dial

Safeway Stores, Inc. v. Joseph W. Dial

311 F.2d 595, 1963 U.S. App. LEXIS 6565
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 3, 1963
Docket19878
StatusPublished
Cited by20 cases

This text of 311 F.2d 595 (Safeway Stores, Inc. v. Joseph W. Dial) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Safeway Stores, Inc. v. Joseph W. Dial, 311 F.2d 595, 1963 U.S. App. LEXIS 6565 (5th Cir. 1963).

Opinion

RIVES, Circuit Judge.

This appeal is from a judgment for $10,000.00 in favor of the plaintiff, Joseph W. Dial, against the defendant, Safeway Stores, Inc., on account of personal injuries suffered by the plaintiff when he slipped and fell in the defendant’s store in Dallas, Texas. The court denied the defendant’s motion for a directed verdict and submitted special issues or interrogatories to the jury. 1 When the jury first announced that it had reached a verdict, the court examined the verdict in chambers while the attorneys remained in the courtroom. Without consulting any of the attorneys and without their having seen the verdict or the jury’s answers to> the special interrogatories, the court, according to the defendant’s “bill of exceptions,”

“ *- * * returned to the Bench in open Court with the jury and both attorneys and parties present and stated to the jury substantially as follows:
“ ‘Ladies and Gentlemen of the Jury: I have read your verdict and find that your answers to the Special Issues are in conflict. I am therefore going to ask you to return to the jury room and deliberate further on your verdict. I direct your attention especially to the Court’s definition of ordinary care and negligence and direct your attention to your answers to Special Issue Nos. 1, 2, 3, 6, 7, 9 and 12 and your failure to answer Special Issue No. a:
“Whereupon one of the jurors (the foreman) asked the Court to repeat her instructions or to repeat the numbers of the Special Issues involved, and the Court reiterated that the jury was to consider issues numbered 1, 2, 3, 6, 7, 9 and 12, and their failure to answer Special Issue No. 4.”

The “bill of exceptions” approved by the court recites further:

“No objections were raised. After advising the jury as outlined * *, the Court then handed the verdict to *597 the marshal who in turn took the jury directly to the jury room for further deliberation. At no time was the verdict or the jury’s answers thereto exhibited to the attorney for plaintiff or attorney for defendant. Again there was no objection.
“Defendant’s attorney made no objection to the Court’s failure to exhibit the verdict and the jury’s answers thereto to the attorneys. No objection was raised until after judgment had been entered in favor of plaintiff when defendant’s attorney for the first time discovered the jury’s answers as first returned. At that time the attorney consulted with the Court, affirmed the jury’s answers as outlined in the * * * Bill of Exceptions plus its Amended Motion for Judgment, or in the alternative for a new trial.
“ * * * the jury’s answers to the issues when the verdict was first returned [are] set forth * * * according to the recollection of the Court and further according to an examination of the original verdict. The original verdict clearly shows some erasures. It cannot be known, of course, when such erasures were made or whether or not there were other answers which were erased which are now illegible. It cannot be known whether the Court’s recollection is correct, there having been no record made. There was no request by either counsel for a record, nor any objection to the reporter’s absence.”

The special issues most pertinent to this appeal, the jury’s answers to such issues when the verdict was first returned (stated according to the recollection of the Court with the caveat which has been quoted from the “bill of exceptions”), and the jury’s answers to such issues when the verdict was accepted by the court may be tabulated as follows:

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Bluebook (online)
311 F.2d 595, 1963 U.S. App. LEXIS 6565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safeway-stores-inc-v-joseph-w-dial-ca5-1963.