Atchison, T. & S. F. Ry. Co. v. Sheppard

• Decision Date: 10 October 1969
• Docket Number: No. 4285,4285
• Citation: 447 S.W.2d 216
• Parties: The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellants, v. James H. SHEPPARD, Jr., et al., Appellees. . Eastland
• Court: Texas Court of Appeals

Page 216

447 S.W.2d 216

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al Appellants, v. James H. SHEPPARD, Jr., et al., Appellees.

No. 4285.

Court of Civil Appeals of Texas Eastland.

Oct. 10, 1969.

Rehearing Denied Oct. 31, 1969.

Hudson, Keltner, Smith & Cunningham, Joe B. Cunningham, Ft. Worth, R. R. Holloway, Holloway & Slagle, Brownwood, for appellants.

George A. Day, Brownwood, Webb, Stokes & Bolding, Tom Webb, San Angelo, for appellees.

COLLINGS, Justice.

This suit was brought by James H. Sheppard, Jr., individually and as next friend for John Rogers Sheppard, a minor, against The Atchison, Topeka and Santa Fe Railway Company and its employee, Walter Robeson. Plaintiffs sought to recover damages for personal injuries sustained by the minor plaintiff in an intersection collision between a truck belonging to the defendant railway company driven by Robeson and a motorcycle upon which the minor plaintiff was a passenger and which was driven by Ronald Allen Campbell, also a minor. The case was tried before a jury and based upon the verdict, judgment was rendered in favor of the minor plaintiff for $81,000.00 and in favor of James H. Sheppard, Jr., individually, in the amount of $6,000.00 and for costs. The defendants have appealed.

The answers of the jury to special issues numbers 22(a), 22(b) and 22(c) were findings of damages upon which the judgment is based. In answer to such issues the jury found that 22(a) $11,000.00 would compensate John Rogers Sheppard for the mental anguish suffered by him from the time of the accident to the date of the trial, 22(b) that $20,000.00 would compensate him for the mental anguish he would in all probability suffer in the future, and 22(c) $50,000.00 would compensate him for the loss of earning capacity he would sustain in the future. In appellants' first point it is contended that the court erred in overruling their motion for a new trial because the evidence shows that the jury was guilty of misconduct in that they returned a quotient verdict in response to such issues. Appellees contend that there was no jury misconduct in the averaging process engaged in by the jury because it was not in furtherance of any agreement to be bound by the results but, to the contrary, was done for the purpose of getting a starting point for deliberation. Appellees further assert that even if it be assumed for the sake of argument that there was a quotient verdict, the same would have been a harmless error under the record in this case.

The record shows that on the hearing of the motion for a new trial nine of the twelve jurors testified concerning the alleged misconduct. Their testimony is summarized as follows: All nine of the jurors who testified stated that in their deliberations regarding the damage issues they used a procedure whereby each juror would write down or turn in a figure as to what he thought the answer should be to each issue, that such amounts were added together and the total divided by twelve so as to give a resulting average figure; and that such procedure was followed in respect to each of the three damage issues in question. The testimony does not reflect that there was any dispute with respect to the fact that such procedure occurred. However, the testimony is in conflict with regard to whether or not there was an advance understanding or agreement by the jurors that the resulting figure would be binding upon them. Six of the jurors testified that there was no agreement to be bound by the result of the averaging process, and that such process was done for the sole purpose of arriving at a working figure for discussion. The testimony of one of the jurors was equivocal in that, depending upon the questioner, it varied concerning whether there was an agreement before the averaging process that the averages arrived at would or would not constitute the answers to parts a, b and c of special issue number twenty-two. Two of the jurors, who signed the affidavit for the defendants, testified unequivocally that there was such an agreement and that they felt bound by and acted upon such agreement.

In 57 Tex.Jur.2d at pages 33 and 34 is found the following statement concerning the rule of law applicable to alleged quotient verdicts:

'It is improper for jurors to agree either expressly or by implication, to assess damages--in terms of the result reached by adding the amounts favored by each juror and dividing the total by the number of jurors. A verdict arrived at by this method is known as a quotient verdict, and, as such, it is invalid.'

'The method of computation described may be resorted to, however, where the figure arrived at is meant to serve only as a basis for further discussion, and the jurors have not agreed to be bound by the result. This is true even though the average figure is subsequently agreed on as the amount recoverable or as the punishment to be imposed.'

In State of Texas v. Wair, 163 Tex. 69, 351 S.W.2d 878, (1961), it is stated as follows:

'The trial court's refusal to grant a new trial upon an express or implied finding of no occurrence of jury misconduct is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown.'

In Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.Ct., 1965), it was held that a trial judge's implied finding that jury misconduct did not occur was binding on appeal where the testimony was conflicting on the grounds of jury misconduct alleged in the motion for new trial. As shown by the evidence, as heretofore summarized, there was a conflict in the testimony of the jurors concerning the question of whether there was an advance agreement between them to be bound by the result of the averaging process. The implied finding of the trial judge that such misconduct did not occur is binding upon us. See also Barrington et al. v. Duncan et al., 140 Tex. 510, 169 S.W.2d 462, 1943; City of Denison v. Jennings Furniture Co., 424 S.W.2d 716, (CCA, 1968, n.r.e.). Appellants' first point is overruled.

In appellants' pleadings there were allegations of contributory negligence on the part of appellee John Rogers Sheppard in failing to protest to Ronald Allen Campbell concerning the speed at which the motorcycle was being operated immediately prior to the collision . In appellants' second and third points it is urged that the court erred in refusing to submit to the jury their requested special issues numbers two and eight. Appellants' requested special issue number two contained four corollary issues as follows:

'(a) Do you find from a preponderance of the evidence that John Rogers Sheppard failed to protest to Ronald Allen Campbell concerning the speed at which the motorcycle was being operated immediately prior to the collision in question?

(b) Do you find from a preponderance of the evidence that a protest of the speed at which the motorcycle was being operated could have been made by John Rogers Sheppard in time for the driver, Ronald Allen Campbell, in the exercise of ordinary care, to avoid the collision in question?

(c) Do you find from a preponderance of the evidence that such...