Barrington v. Duncan

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: Barrington v. Duncan, 169 S.W.2d 462, 140 Tex. 510 (Tex. 1943)
• Decision Date: 03 March 1943
• Docket Number: No. 8024.,8024.
• Parties: BARRINGTON et al. v. DUNCAN et al.

Page 462

169 S.W.2d 462

BARRINGTON et al. v. DUNCAN et al.

No. 8024.

Supreme Court of Texas.

March 3, 1943.

Error to Court of Civil Appeals of First Supreme Judicial District.

Personal injury action by Clarence L. Duncan against G. B. Barrington and another wherein the Texas Employers' Insurance Association intervened. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 162 S.W.2d 1025, and the defendants bring error.

Reversed and cause remanded for a new trial.

A. R. Rucks, of Angleton, and Earnest, Bondies & Flahive, Strasburger, Price, Holland, Kelton & Miller, and Hobert Price, all of Dallas, for plaintiffs in error.

Carlos Masterson of Angleton, and Sewell, Taylor, Morris & Connally, of Houston, for defendants in error.

CRITZ, Justice.

This suit was filed in the District Court of Brazoria County, Texas, by C. L. Duncan against G. B. and Gus Barrington, a partnership composed of the two Barringtons just named, doing business under the trade name of Barrington Truck Lines, to recover damages for the personal injuries alleged to have been received by Duncan as the result of a collision between a truck driven by Duncan and a truck owned by the Barringtons and driven by Gus Barrington. The collision occurred in the nighttime on a public highway in Brazoria County, Texas. Duncan's employer carried compensation insurance in Texas Employers' Insurance Association. Such insurer paid compensation to Duncan and, as it had a right to do, intervened in this suit to have the amount so paid returned to it out of any recovery awarded to Duncan against the Barringtons. The Barringtons answered, defending against the cause of action alleged by Duncan. We will not detail the pleadings of any of the parties. It is enough to say that we treat all pleadings as sufficient to raise the questions of law which we shall discuss.

The case was submitted to a jury in the district court on special issues. Based on the answers of the jury to such issues, the district court entered judgment for Duncan against the Barringtons for $10,319.50. The judgment provided that the Texas Employers' Insurance Association should benefit to the extent of $1,535.33 out of Duncan's recovery. The jury fixed Duncan's damages at $10,000. The additional $319.50 included in the judgment involves the matter of Duncan's treatment paid out by the Insurance Association. This item is not in the jury's verdict.

In their motion for new trial the Barringtons contended that the jury was guilty of misconduct while considering its verdict, in that several members thereof mentioned and discussed the fact that they, the Barringtons, carried insurance, which protected them against any judgment that might be awarded Duncan in this suit. The trial court heard evidence on the question of jury misconduct, and at the close of such hearing overruled the Barringtons' motion for new trial. No findings of fact or conclusions of law on the issue of misconduct were filed by the trial court, and none were requested.

Before proceeding further, we deem it necessary to make a statement of the evidence heard on the issue of misconduct. On such issue four of the jurors who served in the trial of this case testified. These were jurors Goodman, McDaniels, Damon and Engberg.

The juror Goodman in substance testified: That the question of insurance was mentioned but not discussed; that the specific amount of $10,000 of insurance was mentioned; that the question of insurance was mentioned two or three times; that one juror stated that trucks of the nature of the Barringtons' trucks, under the law, had to have insurance; that each time insurance was mentioned some other juror would say that insurance should not be mentioned or considered; and that such matters happened before the jury had agreed on a verdict.

The juror McDaniels in substance testified: That during the time the jury was deliberating on its verdict it was mentioned and there was a discussion with reference to whether or not the Barringtons' truck had to have insurance on it to operate; that there was a mention made of $10,000 insurance on the Barringtons' truck; that it was mentioned that the Barringtons had to have insurance in order to operate a truck of that kind, and that they carried liability insurance; and that when these matters were mentioned some other juror would admonish them that the jury had nothing to do with insurance, and should not consider it.

The juror Damon in substance testified: That one of the jurors brought up the subject as to whether or not the Barringtons had insurance; that Damon said, "we have nothing offered in this case at all as evidence as to whether he did or did not have insurance"; that some juror said, "I wonder if they have got insurance?"; that this juror headed him off because there was nothing offered as evidence as to whether he did or did not have insurance; that Damon did not know whether the amount of insurance was...