Central Power & Light Co. v. Freeman

• Decision Date: 29 August 1968
• Docket Number: No. 415,415
• Citation: 431 S.W.2d 897
• Parties: CENTRAL POWER & LIGHT COMPANY, Appellant, v. Claude FREEMAN et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 897

431 S.W.2d 897

CENTRAL POWER & LIGHT COMPANY, Appellant, v. Claude FREEMAN et al., Appellees.

No. 415.

Court of Civil Appeals of Texas Corpus Christi.

Aug. 29, 1968.

Rehearing Denied Sept. 19, 1968.

H. K. Howard, Fischer, Wood, Burney & Nesbitt, Allen Wood, Corpus Christi, for appellant.

Thomas R. Bell, William H. Hamblen, Edna, for appellees.

OPINION

NYE, Associate Justice.

This was a condemnation case tried before a jury in the county court of Jackson County, Texas, resulting in a judgment in favor of the landowners in the amount of $13,334.70. The condemnor has perfected its appeal alleging in six separate points of error, jury misconduct.

A hearing was had before the court on appellant's amended motion for new trial which alleged, among other things, the misconduct of the six-man jury. The jurors were summoned and all testified. At the conclusion of the testimony the trial court found that during the deliberations of the jury and prior to the reaching of the verdict, the following matters were discussed by various jurors: (1) it was mentioned that the verdict should be substantial so that defendants would have enough left after paying their attorneys; (2) that plaintiff was a big corporation and could charge off the amount of the award; (3) that if a line broke it would have to come in contact with something before cutting off; (4) one juror related his personal experience in getting an allowance of about $150.00 per tree as a deduction in his income tax return for trees destroyed by storm Carla; (5) that the wooden poles supporting the line might be replaced with steel towers; and (6) the length of time it would take for the defendants to get their money back at a specified rental value. The court further found that one or more of the jurors did not hear some of these remarks. The trial court concluded, however, that these remarks did not influence the jurors in reaching their verdict and the above occurrences did not result in harm to the appellant and therefore the amended motion for new trial should be overruled.

The effect of jury misconduct must be determined in light of Rule 327, Texas Rules of Civil Procedure. Under this rule the appellate court inquires as to whether or not as a matter of fact an act of misconduct occurred. If the misconduct is proved from the record as a whole, it ehen must be determined if such misconduct was material and that probable injury resulted to the complaining party before a reversal is justified. It is misconduct for original evidence of material facts to be received by the jury during its deliberations. Jurors must not be permitted to become secret witnesses by testifying and attempting to influence their peers during deliberations. Cases must be tried in the courtroom. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028 (1943). The trial court found acts which amount to misconduct. The evidence substantiates such finding. Therefore, it is not then a question of fact as to whether such misconduct occurred, but one of law to be determined by the appellate court. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); Western Cottonoil Company v. Arnold, 279 S.W.2d 374 (Tex.Civ.App.--Eastland 1955). The effect of jury misconduct commonly called probable injury, is a question of law, and the appellate court is not bound by the trial court's conclusion on this subject. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451 (1949); Missouri Pacific Railroad Company v. Kennedy, 403 S.W.2d 909 (Tex.Civ.App.-- Taylor 1966, ref. n.r.e.). We must determine from the record as a whole, whether such acts were material, and were probably injurious to the appellant.

The first misconduct involves a discussion of attorney fees. Of course the mere mention of attorney fees does not of itself constitute harmful error. It is therefore incumbent upon us to examine the circumstances. The first juror questioned by the appellant admitted that a discussion took place relative to attorney fees. The discussion was led by the foreman who made a statement to the effect that because of attorney fees, that if the settlement was too low the landowners would not receive any benefit from the suit. Another juror testified that the statement was made: 'Well, let's be sure to make it big enough where he can pay his attorney's fees.' These statements were clearly error. Testimony from the jurors substantiated the fact that this occurred very near the beginning of the jury's deliberations and prior to the discussion of the award of damages. Under questioning by the trial judge, the jury foreman admitted attorney fees were discussed and admitted that the discussion was to the effect that if the jury accepted the offer of Central Power & Light, the landowner would be the same as getting absolutely nothing and that the jury should be more realistic. Four of the jurors testified that attorney fees were mentioned and discussed. There was no rebuke by other jurors to this misconduct.

The Supreme Court of Texas had this to say about similar jury misconduct:

'A jury's discussion, when considering the amount of the damages to be awarded the plaintiff, of the attorney's fees that the plaintiff may be required to pay out of what he recovers is material misconduct and is calculated to prejudice the rights of the defendant.' Citing cases.

White Cabs et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947).

The appellee landowner testified to the before and after value of his property. His testimony relative to the damages to the easement strip was the exact amount of damages found by the jury. This amount was several...