Caylat v. Houston E. & W. T. Ry. Co.

• Decision Date: 20 June 1923
• Docket Number: (No. 380-3568.)
• Citation: 252 S.W. 478
• Parties: CAYLAT v. HOUSTON E. & W. T. RY. CO. et al.
• Court: Texas Supreme Court

252 S.W. 478

CAYLAT v. HOUSTON E. & W. T. RY. CO. et al.

(No. 380-3568.)

Commission of Appeals of Texas, Section B.

June 20, 1923.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Charles E. Caylat against the Houston East & West Texas Railway Company and others. Verdict for plaintiff, which the court disregarded, and judgment was entered for defendant and demurrer sustained to plaintiff's motion for new trial. Plaintiff appealed to the Court of Civil Appeals, which court certified questions. Questions answered, and new trial ordered.

Presley K. Ewing, of Houston, for appellant.

Baker, Botts, Parker & Garwood, and McMears, Garrison & Pollard, all of Houston, for appellees.

McCLENDON, P. J.

The appellant, Charles E. Caylat, while traveling in an automobile driven by A. B. Kelly, was seriously injured as the result of a collision with one of appellees' engines at a public crossing, and brought this suit to recover compensatory damages for his injuries. The cause was submitted to a jury upon special issues, who found appellees guilty of various acts of negligence proximately causing the accident, and assessed plaintiff's damages at $17,000. One of the defenses urged by appellees was contributory negligence of plaintiff in the particulars set forth in special issue No. 13, reading as follows:

"Would, or would not, the plaintiff, Charles E. Caylat, by the exercise of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, have discovered, seen or heard the approach of the engine to the crossing, in time to have notified the driver of the automobile, A. B. Kelly, so as to have stopped the automobile before it reached the crossing, and thus have prevented the accident?

"If under all the attendant circumstances you find that plaintiff failed on the occasion in question to exercise ordinary care in the particulars as submitted in the above issue, then answer the issue, `He would.'

"If, under all the attendant circumstances, you do not find that he failed on the occasion in question to exercise ordinary care in the particulars as submitted as an ordinarily prudent person would have exercised under the same or similar circumstances, then answer the issue, `He would not.'"

The jury answered this issue, "He would."

The verdict was returned on January 23, 1920; the jury were polled, the questions and answers being read in open court in their presence, and each juror gave his assent to the verdict. The verdict was then received and filed, the jury discharged, and judgment was entered for appellees.

Plaintiff seasonably filed a motion for new trial, which was amended on February 3, 1920. The amended motion, among other things, complained of the verdict on the ground that the jury had unanimously agreed upon their answer to the Thirteenth special issue to the effect that such answer should be, "He would not," but that by mistake or clerical slip of the foreman, which was overlooked by the jurors when the verdict was returned into court, and not discovered until after they were discharged, the answer was written, "He would." This mistake was not known to plaintiff or his counsel until after the jury had been discharged. This ground of the amended motion was supported by affidavits of all 12 jurors. These affidavits are all to the same effect and in practically the same language. We quote from one of them:

"That the jury, in passing on the special issue No. 13, talked over and threshed out the evidence on this question, and discussed it backwards and forwards, to the entire satisfaction of the jury, and having done so, they, the jury, unanimously reached the conclusion, and in fact found and agreed that the plaintiff, Charles E. Caylat, had not been guilty on the occasion in question, of any negligence or contributory negligence, and that he was, as submitted in the question, in the exercise of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, in not discovering the approach of the engine in time to have notified Kelly as submitted in the question, so that he could have stopped the automobile and prevented the accident, and that an ordinarily prudent person, under the circumstances, would have acted as Caylat did.

"That, having so concluded and found, and unanimously agreed, the jury left it to the foreman to write their answer so finding under the above special issue, and they understood the answer as returned, being, `He would,' to be the finding they had made in favor of the plaintiff on the issue as above stated.

"That the answer returned, `He would,' was written by mistake, and was the result of confusion and misunderstanding.

"That the above mistake was not discovered by affiant when the verdict was returned into court and received and was only discovered after the discharge of the jury, and when told that the answer as returned to the above issue 13 was a finding that Caylat had not exercised ordinary care, instead of a finding that he had exercised ordinary care, which latter the jury in fact found."

On the basis of the showing of the amended motion, plaintiff moved for judgment in his favor, contending that the affidavits of the jurors conclusively established that their verdict upon the issue of plaintiff's negligence was in fact in his favor, but by mistake was returned to the opposite of the finding.

"Afterwards, to wit, on the 21st day of February, A. D. 1920, said amended motion for new trial came on to be heard, when the attorney for the defendants asked leave, which was granted, to interpose to the fourth ground of said motion relating to such alleged mistake, a general exception, which was by the court sustained, and no other or further answer thereto was made or filed; and the jurymen were not assembled or orally examined touching the matter of such alleged mistake, and no evidence, other than the affidavits of the jurors attached to said motion and made a part thereof, was offered or adduced on the hearing of such amended motion; which motion, after argument of counsel for the plaintiff, the court overruled."

The Court of Civil Appeals has certified the following questions:

"First. Did the trial court err in sustaining the general demurrer to the motion for new trial?

"Second. If the above question is answered in the affirmative, we ask: Upon the showing made by the motion and attached exhibits, should the verdict be corrected, or should a new trial be ordered?"

In 1905 the Legislature passed a statute which has since been embodied in the Codification of 1911 as article 2021, reading as follows:

"Where the ground of the motion is misconduct of the jury or of the officer in charge of same, or because of any communication made to the jury, or because the jury received other testimony, the court shall hear evidence thereof; and it shall be competent to prove such facts by the jurors or others, by examination in open court; and, if the misconduct proven, or the testimony received, or the communication made, be material, a new trial may, in the discretion of the court, be granted."

Prior to the enactment of this statute the general rule in this state relative to receiving the affidavits of jurors for the purpose of "impeaching their verdicts" is summarized in the following quotation from the case of Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242:

"The generally received doctrine is that the affidavits of jurors shall not be received to impeach their verdict. And for the obvious reason that it would open a door for tampering with jurors, and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of an oath. The subject was very fully examined in the case of The State v. Freeman (5 Conn. R. 384), and after reviewing the authorities, the court concluded that `almost the whole legal world is adverse to the reception of the testimony in question' (that of the jurors who tried the case), `and on invincible foundations.' In Graham & Waterman on New Trials it is said, `It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England, and, with the exception of Tennessee, perhaps in every state of this confederacy, that such affidavits cannot be received, and we believe upon correct reasoning.' 3 Gr. & Wat. New Trials, 1429. The numerous cases there collected and reviewed, confirm the observation. In Tennessee, where the affidavits of jurors are admitted to impeach their verdict, it is said they must be received with great caution. 4 Humph. 516. In Ohio, it is said, they are not in general admissible for that purpose, and can only be received under certain circumstances, where a foundation has been first laid by other evidence. Farrer v. The State, 2 Ward. (Ohio) 54. The better opinion is that they ought not in general to be admitted to impeach the verdict, and, if received at all for that purpose, it ought only to be under special circumstances. The course of decision in this court has been decidedly to discountenance applications for new trials, founded on the affidavits of jurors; and the consequence is that few cases of this kind have occurred in our practice. (Kilgore v. Jordan, 17 Tex. 341; 1 Id. 726; Id. 475.)"

This rule has been recognized in Texas from the earliest times and has never been departed from. Some of the more important Supreme Court cases in which the rule has been applied are the following: Mason v. Russel's Heirs, 1 Tex. 721; Handley v. Leigh, 8 Tex. 129; Davis v. State, 43 Tex. 191; Bank v. Bates, 72 Tex. 142, 10 S. W. 348; Ry. v. Gordon, 72 Tex. 51, 11 S. W. 1033; Letcher v. Morrison, 79 Tex. 241, 14 S. W. 1010; Ry. v. Ricketts, 96 Tex. 71, 70 S. W. 315.

It seems to be generally conceded that this rule may be directly traced to the case of Vaise v. Delaval, 1 T. R. 11 K. D., in...