Cortez v. Medical Protective Co. of Ft. Wayne, Ind.

• Decision Date: 30 November 1977
• Docket Number: No. 1224,1224
• Citation: 560 S.W.2d 132
• Parties: Dr. Narciso CORTEZ, Appellant, v. The MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, et al., Appellees.
• Court: Texas Court of Appeals

Page 132

560 S.W.2d 132

Dr. Narciso CORTEZ, Appellant,

v. The MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, et

al., Appellees.

No. 1224.

Court of Civil Appeals of Texas, Corpus Christi.

Nov. 30, 1977.

Rehearing Denied Jan. 5, 1978.

Homero M. Lopez, Lopez, Uribe & Monson, Brownsville, for appellant.

Gary R. Gurwitz, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellees.

OPINION

NYE, Chief Justice.

Plaintiff, Dr. Narciso Cortez sued his medical malpractice insurer, Medical Protective Company, alleging that the insurance company had damaged his professional reputation and caused him severe emotional distress because it had settled a malpractice claim without his knowledge or consent. In response to special issues, the jury found that Dr. Cortez did not suffer any damages. Whereupon a judgment was entered in favor of the defendant company. Plaintiff's sole point of error on appeal is material jury misconduct.

In April 1972, a Jose Gutierrez individually and on behalf of his son sued Dr. Cortez for an alleged negligent surgical treatment of his son. The record indicates Dr. Cortez had never treated this patient nor participated in the surgery leading to the negligence claim. Dr. Cortez carried a medical malpractice insurance policy with defendant Medical Protective and under the terms of the policy the insurance company had a duty to defend Dr. Cortez against any malpractice claim. Dr. Cortez telephoned an agent of defendant insurance company to inform him of the mistaken identity and to request that the insurance company take corrective action. The insurance agent told Dr. Cortez the name of the attorney assigned to his case and assured him the matter would be resolved. After several unsuccessful attempts to contact the insurance company's attorney, Dr. Cortez again telephoned the agent and requested that another attorney be assigned to his case. Dr. Cortez received no further communication from the insurance company regarding the Gutierrez' negligence suit. In the meantime, Dr. Cortez hired a private attorney who investigated and discovered that the suit against him had been settled. Thereafter, Dr. Cortez instituted this suit against his insurance company.

During the course of the trial, it was uncontradicted that Dr. Cortez' insurance policy provided that the company "shall not compromise any claim without the consent of the insured" and it was stipulated that the insurance company settled the lawsuit in question without the knowledge or consent of Dr. Cortez. Dr. Cortez' motion for new trial alleged one ground of jury misconduct. It was to the effect that the jury disregarded the stipulation of the parties and determined that Dr. Cortez' call to the insurance company constituted consent on the part of Dr. Cortez to the settlement without being further advised. This consideration by the jury was in total disregard of the evidence and the stipulation agreed to by the parties and as such was a determining factor by which the jury found that Dr. Cortez was not entitled to his claim of damages. The motion stated that affidavits of jurors were not attached because they were reluctant to sign the same. However, the affidavit of an investigator for Dr. Cortez' attorney was attached. This affidavit read as follows:

"I, GUADALUPE OLVERA III, being under the employment of HOMERO M. LOPEZ, LAW OFFICES as Law Clerk and Investigator did talk to Mrs. Irene Atkinson Guerrero and Rogelio G. Garza in regards to the basis of their decision in Case No. 75-521-A, DR. NARCISO CORTEZ VS. THE MEDICAL PROTECTIVE COMPANY. Both Jurors informed me that the reason for rendering a Judgment against Dr. Cortez was because they understood that he had given his consent to the Insurance Company in Special Issue No. One for settlement purposes.

/s/ Guadalupe Olvera III

GUADALUPE OLVERA III"

(emphasis added)

Although no juror affidavits were attached to the motion for new trial, three jurors were present and were willing to testify. The record indicates the trial judge considered the motion and then heard the arguments of counsel to determine whether the jurors' testimony should be allowed or prohibited as an invasion of the jurors' mental processes. Dr. Cortez' attorney argued to the court that the misconduct of the jury was as follows: that the jurors considered that Dr. Cortez' phone call to the insurance company constituted consent by Dr. Cortez to settle the case in spite of the instructions of the court; that the jury disregarded the instructions of the court and if the jurors had been allowed to testify that they would state that Dr. Cortez was not entitled to damages because of the alleged telephone consent he had given to his insurance company. The trial judge told the attorney for Dr. Cortez that all of this amounted to an invasion of the jury's mental processes, however, the trial court agreed to permit Dr. Cortez' attorney to dictate a stipulation into the record as to the substance of the jury's testimony, had they been permitted to testify. The stipulation which was agreed to by the attorney for the insurance company was as follows "What evidence I would produce would be, in substance, that more than three jurors have told me was the fact that they had taken that Dr. Cortez consented by virtue of calling the insurance company and, therefore, he had no right to file any suit or claim any mental anguish because he was part of that consent by virtue of the telephone call . . ."

Based on this stipulation, the trial court then denied Dr. Cortez' motion for new trial and refused to hear the jurors' testimony.

The Texas Supreme Court in Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942), established rules to determine when a trial court must hear testimony of jurors during a hearing on a motion for new trial predicated on jury misconduct. The court there stated:

"The only remedy against 'fishing expeditions' where misconduct is charged, is to require that, by affidavits, the movant shall prove his good faith, and, by particularizing, demonstrate that his allegations of misconduct are based upon knowledge and not suspicion or hope."

"Therefore, we hold the correct rule is:

(1) (I)f affidavits are attached to the motion showing material jury misconduct it is reversible error for the trial court to refuse to hear testimony on the motion, * * *

(2) or, if the motion discloses a reasonable explanation and excuse as to why affidavits cannot be secured and exhibited, in connection with sufficient allegations of material jury misconduct, it is likewise reversible error to decline to hear testimony on the motion, * * * but

(3) in the absence of such affidavits or a reasonable excuse for not exhibiting the same, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge." (emphasis added)

Our threshold inquiry is whether Dr. Cortez' motion contains "sufficient allegations of material jury misconduct." Rule 327, Texas Rules of Civil Procedure, requires more than "shot gun allegations" of misconduct as a basis for subjecting jurors to a searching inquisition in an effort to uncover suspected jury misconduct. Metcalfe v. Baker Pump Corp., 457 S.W.2d 346, 347-48 (Tex.Civ.App. El Paso 1970, writ ref'd n. r. e.); Griffith v. Hudspeth, 378 S.W.2d 153, 156 (Tex.Civ.App. San Antonio 1964, no writ); Walker v. Missouri Pacific Railroad Co., 425 S.W.2d 462, 466-67 (Tex.Civ.App. Houston (14th Dist.) 1968, writ ref'd n. r. e.). The juror affidavits, or the motion itself where there is a reasonable excuse for the absence of juror affidavits, should set forth specific facts concerning the act of misconduct relied upon, naming or identifying the juror or jurors who committed the misconduct, and showing that, as a consequence, harm resulted to the movant. Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690, 697 (Tex.Civ.App. Corpus Christi 1965, writ ref'd n. r. e.); Moran Utilities Co. v. McHaney, 325 S.W.2d 712, 722 (Tex.Civ.App. Beaumont 1959, writ ref'd n. r. e.); Smith v. Houston Transit Co., 215 S.W.2d 187, 190 (Tex.Civ.App. Galveston 1948, writ ref'd n. r. e.); Robertson v. Humble Oil & Refining Co., 116 S.W.2d 820 (Tex.Civ.App. Texarkana 1938, error dism'd). If the movant cannot state the facts specifically, he should plead the facts which show his inability to do so. The facts so pled must show that the charges are grounded on knowledge rather than suspicion. Union City Transfer v. Adams, 248 S.W.2d 256, 259-60 (Tex.Civ.App. Fort Worth 1952, writ ref'd n. r. e.), cert. denied, 344 U.S. 912, 73 S.Ct. 334, 97 L.Ed. 703 (1953); Freedman Packing Co. v. Harris, 160 S.W.2d 130, 134 (Tex.Civ.App. Galveston 1942, error ref'd w. o. m.).

The facts alleging jury misconduct must demonstrate that the charge of jury misconduct can be substantiated through admissible evidence at the hearing on motion for new trial. Lanphier Construction Co. v. Fowco Const. Co., 523 S.W.2d 29 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.); Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690 (Tex.Civ.App. Corpus Christi 1965, writ ref'd n. r. e.). Jury misconduct can be proved only through evidence of overt acts of misconduct. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.Sup.1969); Baucum v. Statewide Hot Shot, 550 S.W.2d 156 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.). All conversation is an overt act but not everything said in the jury room is a proper subject of inquiry. ...