City of San Antonio v. McKenzie Const. Co.

• Decision Date: 19 March 1941
• Docket Number: No. 7789.,7789.
• Citation: 150 S.W.2d 989
• Parties: CITY OF SAN ANTONIO et al. v. McKENZIE CONST. CO.
• Court: Texas Supreme Court

150 S.W.2d 989

CITY OF SAN ANTONIO et al. v. McKENZIE CONST. CO.

No. 7789.

Supreme Court of Texas.

March 19, 1941.

Motion for Rehearing Overruled May 14, 1941.

COPYRIGHT MATERIAL OMITTED

Error from the Court of Civil Appeals, Fourth Supreme Judicial District.

Suit by the McKenzie Construction Company against the City of San Antonio and others for money allegedly due under contract for construction of a dam. A judgment for plaintiff for $82,157.08 was reversed and remanded for a new trial by the Court of Civil Appeals, 138 S.W.2d 568, and both plaintiff and defendants applied for writs of error, which were granted.

Judgment of the Court of Civil Appeals affirmed.

J. I. Kercheville, City Atty., Henry B. Dielmann, Asst. City Atty., and Brooks, Napier, Brown & Matthews, all of San Antonio, and Boone, Henderson, Boone & Davis and B. D. Tarlton, all of Corpus Christi, for plaintiffs in error.

Dodson, Ezell & Duke, of San Antonio, Kleberg, Eckhardt & Lowe, of Corpus Christi, and Black, Graves & Stayton, of Austin, for defendants in error.

CRITZ, Justice.

This suit was originally filed in the District Court of Bexar County, Texas, by the McKenzie Construction Company, a private corporation, against the City of San Antonio, a municipal corporation, and its governing officers, naming them. Simply stated, McKenzie Construction Company seeks by its petition to recover from the City a money judgment for more than $100,000, alleged to be due it by the City under an express written contract for the construction of a dam. It is alleged that the contract was duly entered into by and between McKenzie Construction Company and the City. It appears that the venue of the case was, by agreement, changed to Nueces County, Texas.

We shall hereafter refer to McKenzie Construction Company as McKenzie, and to the City and its officers as the City.

This case has been twice tried in the district court. At the close of the first trial the district court peremptorily instructed a verdict for the City. As we understand it, such instructions were grounded principally upon the theory that the evidence conclusively showed that there was no valid contract between McKenzie and the City. On appeal by McKenzie to the San Antonio Court of Civil Appeals the judgment of the district court was reversed and the cause remanded to that court for a new trial. 50 S.W.2d 349. In the opinion ordering such reversal it was held that the contract sued on was legally entered into. This Court "Refused" writ of error applied for by the City.

After this Court refused writ of error as above indicated, the case was again tried in the District Court of Nueces County, Texas, with the aid of a jury. Based upon the jury's verdict, judgment was entered for McKenzie in the sum of $82,157.08, with 8 per cent. interest from a date prior to the judgment. We will later refer to this matter of interest. The City appealed to the San Antonio Court of Civil Appeals. On original hearing on such second appeal the Court of Civil Appeals reversed its former ruling, and adjudged that the contract declared on by McKenzie was never legally entered into by it and the City. As a result of such ruling the Court of Civil Appeals entered judgment reversing the judgment of the district court and rendering a take nothing judgment for the City. 88 S.W.2d 622, 626. This Court then granted writ of error on the application of McKenzie. On hearing in this Court the holding of the Court of Civil Appeals that there existed no legal contract between McKenzie and the City was reversed. After the ruling just indicated, this Court remanded the cause to the Court of Civil Appeals to pass on the other questions of law and fact properly raised by the briefs and the record. When the case again reached the Court of Civil Appeals, such court entered judgment reversing and remanding the cause to the district court for a new trial. 138 S.W.2d 568, 577. Both McKenzie and the City were dissatisfied with the rulings of the Court of Civil Appeals, and both made applications to this Court for writs of error. Both applications were granted, and the cause has been duly submitted in this Court.

A reading of the opinion of the Court of Civil Appeals will disclose that one of the grounds for reversing the judgment of the district court was its holding that this record, as a matter of law, shows that some of the members of the jury trying this case were guilty of misconduct during the trial; and from the whole of the pertinent record it is reasonably doubtful whether or not such misconduct affected the verdict on material questions.

We think it is the settled law of this State that where the jury is guilty of misconduct, and from the whole of the pertinent record it is reasonably doubtful to the appellate court itself whether or not such misconduct affected the verdict on any material question, such verdict will not be allowed to stand. Texas & N. O. Ry. Co. v. Parry, Tex.Com.App., 12 S.W.2d 997; Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372; Corn v. Crosby County Cattle Co., Tex.Com.App., 25 S.W.2d 290; Elizondo v. Reagan, Tex.Com.App., 55 S.W.2d 540; Walker v. Quanah, A. & P. Ry. Co., Tex.Com.App., 58 S.W.2d 4; Dallas Ry. & Ter. Co. v. Garner, Tex.Com.App., 63 S.W.2d 542. We also refer to the authorities cited by the Court of Civil Appeals on this question. We think it is also the settled law that where there is a real conflict of evidence touching the question as to whether or not misconduct of a jury actually occurred, the finding, express or implied, of the trial court on such question is final. Bradshaw v. Abrams, supra. Simply stated, if the misconduct occurs, the question as to whether or not it is calculated to injure is a question of law; but the question as to whether or not misconduct actually occurred is a question of fact, if the evidence on that issue is conflicting.

The trial court conducted a very extensive hearing on the issue of misconduct. The testimony in regard thereto comprises some 385 pages in the statement of facts. Manifestly it would be unreasonable to expect this Court to even make a condensed statement of such a record. It appears, however, that at some time after the trial had begun, one of the jurors, named Slavik, wrote a letter to one of the attorneys for the City. The letter is set out in full in the opinion of the Court of Civil Appeals. 138 S.W.2d 568, 570. In the interest of brevity we will not reproduce it here. It is sufficient to say that the letter, among other things, asked the attorney to aid the writer in securing a job. It also assured the attorney that he was an honest and straight man, not only as a lawyer, but also as a friend. It further stated that if the writer could get work with a certain company or some other concern, at the recommendation of the attorney, he could send his boy to school, and assured the attorney that he would see him when the case was over. As soon as the attorney to whom the letter was addressed received it, he took it to the trial judge, and also to opposing counsel. Neither side offered any objection to the juror's serving further, or asked for a mistrial, — and, as said by the Court of Civil Appeals, "condoned or waived the matter." By this we mean to say that both sides waived any right to object to Slavik's further serving as a juror merely on account of his having written the letter above mentioned. No suspicion attaches to any attorney in this case as to any wrongdoing with reference to this letter, or anything which happened in regard to the juror Slavik, or any other jury misconduct which may have happened afterwards.

As we understand this record, it is conclusively established that after the jury began its deliberations the juror Slavik was not in accord with the balance of the jury in regard to how some of the material issues should be answered. It is further shown that after deliberations had commenced this juror sulked and refused to participate in the discussions or to vote. It further appears that another member of the jury who knew about such letter suggested to Slavik that he should participate, as no verdict could be reached if he did not do so. This juror also suggested to Slavik that if he was right, to give his reasons and stand by them, but if he was expecting something in return for the course he was pursuing, because of the letter he had written, it might lead to trouble. It appears that after he had been talked to and reminded of his letter, Slavik participated in the jury's deliberations and agreed to the answers returned. It also appears that before the juror talked to Slavik, he (Slavik) had announced that he would never find bad faith on the part of the engineer, and that he thought such a finding would defeat a judgment for the City. We will not further attempt to detail the evidence, except to say that it shows that a number of the members of the jury found out about this letter. This information was not given to them in the trial, and if they found out about it, it was in some way that should not have happened.

To our minds, a verdict obtained under the above circumstances ought not to stand. Our Constitution guarantees a trial by a fair and impartial jury. This means that every member of the jury must be a fair and impartial juror. We think that no court can say beyond a reasonable doubt that, under the circumstances of this case, Slavik was free to act as an impartial juror, and that he did so act. He had written this letter while he was on the jury. Other members of the jury learned about such letter. Slavik was not in accord with the other jurors on material issues. The letter was not properly before the jury. In spite of this, the letter was undoubtedly used in some way in dealing with Slavik. He was reminded of the fact that he had written the letter, and it was at least suggested that if he was expecting something in return for the course he was pursuing, the letter might lead to trouble...