Allan v. Materials Transp. Co.

• Decision Date: 14 November 1963
• Docket Number: No. 3,3
• Parties: Chris H. ALLAN, Appellant, v. MATERIALS TRANSPORTATION COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 744

372 S.W.2d 744

Chris H. ALLAN, Appellant, v. MATERIALS TRANSPORTATION COMPANY et al., Appellees.

No. 3.

Court of Civil Appeals of Texas, Corpus Christi.

Nov. 14, 1963.

Rehearing Denied Dec. 5, 1963.

Wm. B. Mobley, Corpus Christi, for appellant.

Guy Allison, of Allison & Longmire, Corpus Christi, for appellees.

NYE, Justice.

This case grows out of a collision which occurred at an intersection on the northwest corner of the Nueces County Courthouse in Corpus Christi, Texas.

The plaintiff, Allan, was driving a station wagon west on Belden Street. Boykin, Defendant and an employee of Materials Transportation Company, the other defendant, was driving their truck tractor east on the same street. At the intersection of Broadway and Belden Streets, the defendant made a left-hand turn in front of Allan while attempting to turn north from Belden Street to Broadway. The collision occurred at this point. Allan sued Materials Transportation Company and their driver-employee, Johnny J. Boykin, for personal injuries and property damage. The case was tried by a jury, and from the verdict and judgment in favor of the defendants, Materials Transportation Company and Boykin, the plaintiff has appealed.

Although the Appellant, Allan, predicates his appeal on the sole question of jury misconduct, the Appellees, by counterpoint, question (1) the jurisdiction of this court, and (2) contend that the trial court erred in receiving the evidence of jury misconduct. The question of jurisdiction is not in this case. We will dispose of the other part of the appellees' counterpoint.

Appellant timely filed his motion and amended motion for new trial setting forth three grounds in his amended motion. First and second grounds were abandoned by appellant. His third ground stated as follows:

'One of the jurors was guilty of misconduct in that the Court specifically instructed the jury to 'Be careful not to consider or mention any personal knowledge you may have about any fact or person, which is not shown by the evidence you have heard in this trial. Do not try to gather any evidence for yourself. Your duty is to answer these questions from the evidence you have here and from that alone'; that one juror, Norbert Schwetzer, contrary to the instructions of this Court and during the process of this trial, before the jury had retired for deliberation, went to the scene of the accident in question and observed said scene for an undertermined length of time and that said juror mentioned facts concerning the intersection in question which lead other jurors to presume he was personally aware of the intersection and had personal knowledge as to same, contrary to the Court's instructions.' (Italics supplied)

Appellant did not swear to his motion, nor did he attach to it the affidavit of juror Schwetzer or the affidavits of any other jurors, nor did he offer any explanation or excuse as to why affidavits were not secured and exhibited. Appellee filed a motion to strike appellant's amended motion for new trial, to which appellant filed an answer, and attached to it three affidavits. One was from his Attorney, W. B. Mobley, one from juror Jack H. Stanton, and the other from juror L. D. Sassman. The record and affidavits davits disclose that juror Schwetzer was not the juror that committed misconduct, but that it was a juror by the name of L. D. Sassman. During the hearing on the amended motion for new trial, the trial judge overruled the appellee's motion to strike, received the attached affidavits, and proceeded to hear the testimony of juror Jack H. Stanton and the testimony by deposition of juror L. D. Sassman. Appellee excepted and argues that the affidavits were filed some ten days after the last day an amended motion could be filed, and that the receiving of such affidavits and the testimony from jurors other than the one named in the amended motion for new trial was improper, and tantamount to permitting the appellant to file an additional amendment to his amended motion for new trial, in violation of Rule 329b, Section 2, Texas Rules of Civil Procedure.

Appellee contends that it was error for the trial court to receive this additional evidence and if his contention be correct, the appellant does not have any evidence of jury misconduct on which this Court could consider. We overrule appellee's counterpoint.

Appellant's ground for new trial was one of Jury misconduct. Where this ground is alleged, the motion should be supported by the affidavit of a juror or jurors or a reasonable explanation as to why such affidavit cannot be obtained. There is no rule that makes this requirement, but in order to avoid a fishing expedition based on hope and suspicion, the courts have required this. It is the duty of the complaining party when he is suspicious of jury misconduct, and in order to safety assure himself that justice will be done, to follow the correct rules laid down by our Supreme Court in the Ray Jones Lumber Co. v. Murphy case, 139 Tex. 478, 163 S.W.2d 644 (1942).

'(1) [I]f affidavits are attached to the motion showing material jury misconduct it is reversible error for the trial court to refuse to hear testimony on the motion, * * *

(2) or, if the motion discloses a reasonable explanation and executed as to why affidavits cannot be secured and exhibited, in connection with sufficient allegations of material jury misconduct, it is likewise reversible error to decline to hear testimony on the motion, * * * but

(3) in the absence of such affidavits or a reasonable excuse for not exhibiting the same, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge.'

Appellant's motion was not such that would command the trial court to hear the evidence of jury misconduct. However, operating within the sphere of its sound discretion, the trial judge is allowed great latitude in passing on a motion for new trial. Such power was very ably described by Associate Justice Sutton in Equitable Life Assur. Soc. of the United States v. Murdock, 219 S.W.2d 159, 164 (Tex.Civ.App., 1949, ref., n.r.e.).

'The greater latitude is allowed the trial court in granting than in refusing new trials, since in such cases the rights of the parties are not finally settled. There are many apparent reasons why the trial court is permitted to exercise to liberally this inherent power and discretion. The trial court having the parties, the witnesses and counsel before it, and the opportunity to observe their demeanor and conduct during the trial and to note all incidents occurring during its progress likely to affect the results of the trial, is better qualified to judge whether a fair trial has been had and substantial justice done than is the appellate court, it is said. * * * In the opinion of this writer it is this inherent power and the discretion well placed that makes a District Judge the most important officer in the State Government and a good one the most valuable, because armed with this power and discretion, if justice miscarries it is generally his fault.'

A motion for new trial to the complaining litigant is in fact, as in law, a vital step in the trial and appeal of a jury case. The trial judge's responsibility does not end on the rendition of judgment, but in order that justice be done, it is incumbent upon him to exercise sound discretion and the same impartiality which he manifests throughout the trial in determining whether or not misconduct occurred, and if proved, that injury probably resulted to the complaining party (See McDonald Texas Civil Practice, Section 18.01).

The complaining appellant asserted jury misconduct to the trial court. Rule 327, Texas Rules of Civil Procedure states that: 'Where the ground of the motion is misconduct of the jury * * * that they received other testimony, * * * the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, * * *be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.'

The rules provide that only one amendment to a motion for new trial may be had (T.R.C.P. 329b, Section 2), and the movant shall confine the evidence presented to that covering the alleged ground specified in the motion (T.R.C.P. 320). Where the motion does not contain supporting affidavits, and the motion fails to disclose a reasonable explanation for such absence, we hold that the receiving of additional evidence of jury misconduct from additional jurors other than the juror named in the motion, was discretionary with the trial judge. The hearing of such evidence did not amount to an additional amendment to the amended motion, when the evidence was confined to the ground alleged in the motion. This case, and the evidence contained in its record, is properly before this Court on appeal.

Appellant's point on appeal is that the trial court erred in denying his motion for new trial because one of the jurors...