Bell v. New Jersey Ins. Co.
| Decision Date | 16 September 1938 |
| Docket Number | No. 13787.,13787. |
| Citation | 120 S.W.2d 610 |
| Parties | BELL et ux. v. NEW JERSEY INS. CO. |
| Court | Texas Court of Appeals |
T. W. Dunn, Julien C. Hyer, and A. W. Christian, all of Fort Worth, for plaintiffs in error.
Thompson, Knight, Baker, Harris & Wright and Ben F. Vaughan, Jr., all of Dallas, for defendant in error.
J. D. Bell and wife, Ella J. Bell, have prosecuted this writ of error from a judgment denying them a recovery against the defendant, New Jersey Insurance Company, on a fire insurance policy issued by it, covering a dwelling house owned by the plaintiffs.
It was alleged in plaintiffs' petition that the policy sued on was in the sum of $2,900, and that the improvements were wholly destroyed by fire during the life of the policy. In the alternative, it was alleged that if the improvements were not a total loss, then they were damaged in the sum of $2,900.
Upon the trial of the case, the jury found that there was not a total loss, but that the improvements were damaged in the sum of $2,900. There were other findings, by reason of which the court denied plaintiffs any recovery. It becomes unnecessary to notice the legal effect of those findings, since they are unchallenged on this appeal, and the only assignments of error presented for a reversal of the judgment are based upon allegations of misconduct of the jury and an oral instruction of the court incidental thereto.
The misconduct alleged and shown consisted of an unauthorized intrusion in the jury room of one G. E. Knowles during the deliberations of the other twelve jurors, and the taking part by him in the deliberations of the jury while considering their answer to the issue as to whether or not there was a total loss of the building, as the result of the fire. Knowles was on the regular panel of the jury for the week, but was not selected as one of the jurors to try the case, there being a full jury of twelve. After the jury retired to consider their verdict, they discovered the presence of Knowles and objected to his presence in the jury room, and protested to him that he had no right there. In reply Knowles insisted that he was a member of the jury and had the same right to sit as the rest of the jurors, and further stated, in substance, that the house was not a total loss, unless it was reduced to ashes, with no foundation left.
The jury then called the sheriff and sent word to the trial judge, protesting the presence of Knowles in the jury room. Thereupon, the judge had Knowles brought into court, where he was questioned, and he admitted that he had been present in the jury room, under the belief that he had the right so to do. He further admitted making a statement to the jury of his conclusion that there was not a total loss of the house. The trial judge then had the jury brought into court, and stated to them that Knowles, without any reason whatever, had intruded himself into the jury room and had taken part in the discussion of one of the issues submitted, and propounded to them the question whether or not anything Knowles had said had influenced or would influence them in rendering their verdict, to which the jurors, in unison, answered: "None whatever — None — No, sir — None by me — No, sir, no, sir." The court then instructed them orally not to take into consideration anything Knowles had said in their deliberations. Counsel for plaintiffs objected to all of that proceeding, including the oral instructions so given by the court.
In plaintiffs' motion for a new trial, one of the grounds alleged was misconduct of the jury, growing out of Knowles' presence in the jury room and what he had said to the jury, as noted above, all of which was established by the testimony of eight of the jurors, who were introduced on a hearing of the motion, and all of whom testified on that hearing to the unauthorized intrusion of Knowles into the jury room, and the part taken by him in the discussion of the issue of total loss. After that hearing, the motion for a new trial was overruled.
As shown by a bill of exception, counsel for plaintiffs was present when Knowles was brought into the court and before the jury was sent for, and heard Knowles admit that he had intruded himself into the jury room after they had retired to consider their verdict and had there expressed his opinion to the jury that the house was not a total loss, as a result of the fire. After being so informed, counsel for plaintiffs did not request the court to declare a mistrial by reason of such action on the part of Knowles, thus electing to take chances for a verdict in plaintiffs' favor. By reason of such action, they waived their right now to complain of reversible error, by reason of said action on the part of Knowles.
Many authorities might be cited which amply sustain this conclusion, among which are the following: Allala v. A. N. Tandy & Sons, San Antonio Court of Civil Appeals, 59 S.W.2d 205, approved in opinion by Supreme Court reported in 127 Tex. 148, 92 S.W.2d 227; Wolf v. Wolf, Tex.Civ.App., 269 S.W. 488, writ dismissed; Scales v. Lindsay, Tex.Civ.App., 43 S.W.2d 286, writ dismissed; Harmon v. Ketchum, Tex.Civ.App., 299 S.W. 682, writ dismissed; Carter v. Guaranty State Bank, Tex.Civ.App., 262 S.W. 108; White v. Haynes, Tex.Civ.App., 60 S.W.2d 275, writ dismissed; Speer's Law of Special Issues in Texas, page 539.
Furthermore, there is no showing in the record of probable injury to plaintiffs, as the result of the intrusion of Knowles into the jury room and his remarks to the jury, to the effect that plaintiffs had not sustained a total loss of their dwelling house, because: First, there is no statement of facts in the record showing any evidence that would have supported a finding that the house was in fact wholly destroyed; second, there was a finding that although the house was not wholly destroyed, it was damaged in the sum of $2,900, which was the full amount of insurance stipulated in the policy, and therefore the full amount recoverable for a total loss of the property; third, no complaint is made of the action of the court in denying plaintiffs a recovery for the partial loss, independently of the issue of total loss. Therefore, the action of Knowles would be immaterial and harmless error at all events. Day v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 297 S.W. 501; Dennis v. Neal, Tex.Civ.App., 71 S.W. 387; Turner v. Texas Electric Service Co., Tex.Civ.App., 77 S.W.2d 728; Teston v. Root, Tex.Civ.App., 95 S.W.2d 524; Travis v. Pratt, Tex.Civ. App., 254 S.W. 506; San Antonio Traction Co. v. Settle, 104 Tex. 142, 135 S.W. 116; Emberlin v. Wichita Falls Ry. Co., Tex.Com.App., Sect. B., 284 S.W. 539; McCormick v. Southwestern Bell Telephone Co., Tex.Civ.App., 36 S.W.2d 1082; R.C.S. Art. 2234; International-G. N. Ry. Co. v. Cooper, Tex.Com.App., 1 S.W.2d 578; ...
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