Davis v. Damge

• Decision Date: 01 October 1959
• Docket Number: No. 13450,13450
• Citation: 328 S.W.2d 203
• Parties: Florence Goodson DAVIS, a Feme Sole, Appellant, v. John L. DAMGE et ux., Appellees.
• Court: Texas Court of Appeals

Page 203

328 S.W.2d 203

Florence Goodson DAVIS, a Feme Sole, Appellant, v. John L. DAMGE et ux., Appellees.

No. 13450.

Court of Civil Appeals of Texas, Houston.

Oct. 1, 1959.

Rehearing Denied Oct. 29, 1959.

Walter C. Clemons, William C. Spence, Houston, for appellant.

Barrow, Bland & Rehmet, Houston, Vincent W. Rehmet, Houston, of counsel, for appellees.

WOODRUFF, Justice.

This is an appeal from an order overruling appellant's motion for new trial alleging jury misconduct.

Appellees, John L. Damge and wife, Mildred, sued appellant, Florence Goodson Davis, a feme sole, to recover damages sustained by them when Mrs. Damage and Mrs. Davis, operating their respective automobiles, were involved in an intersectional collision. Mrs. Davis answered appellees' suit and filed a cross-action against them, seeking a recovery of her damages.

The case was submitted to the jury on 19 Special Issues. By their answers the jury found: (1) that appellant, Mrs. Davis, 'failed to keep a proper lookout', (2) which was a proximate cause of the collision; (3) that appellant was operating her car 'at a greater rate of speed' etc., (4) which was a proximate cause of the collision; (5) that Mrs. Damge entered the intersection before appellant; (6) that appellant failed to yield the right of way, (7) which was a proximate cause of the event. The jury also found: (8) that appellant was not driving more than 30 miles per hour; (10) neither was Mrs. Damge; (12) Mrs. Damage was not operating her car 'at a greater rate of speed' etc., (14) but that she 'failed to keep a proper lookout', (15) which was 'a proximate cause of the collision' although (16) she did not fail to yield the right of way.

In response to Special Issues Nos. 18 and 19 the jury found that appellees and appellant respectively sustained damages in the sum of $1,000 each. The Court entered judgment denying both parties a recovery. Mrs. Davis filed a motion for new trial, alleging jury misconduct. After hearing, it was overruled, and from that order she has appealed.

Findings of fact and conclusions of law were neither requested nor filed. The statement of facts contains only the testimony of five jurors who testified on the motion for new trial.

Appellant bases her appeal on 3 Points, wherein she asserts that the Trial Court erred in not granting her a new trial because the acts of certain jurors in consulting dictionaries and law books while considering Issues on proximate cause constituted material and prejudicial misconduct and because the jury foreman stated during a consideration of her damage Issue that probably her employer was paying her regular salary during her period of recuperation, which remarks were material and prejudicial to her.

At this late date we deem it wholly unnecessary to do more than to point out that where jury misconduct is relied on as a ground for new trial, Rule 327, Texas Rules of Civil Procedure, since its adoption on September 1, 1941, has been construed to do away with the presumption of prejudice which, under the provisions of Article 2234 Vernon's Ann.Texas St., 1925, arose from mere proof of jury misconduct, and the burden now rests upon the party asserting such misconduct, not only to prove by a preponderance of the evidence that misconduct occurred, but also of showing that it probably resulted in injury to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259; Menefee v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 181 S.W.2d 287, ref., w. m.; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989.

It is well settled, too, that under the provisions of Rule 327, T.R.C.P., whether misconduct occurred is a question of fact, but where it is established the question of probable injury is one of law for the Court. Barrington v. Duncan, supra; City of Houston v. Quinones, supra; Menefee v. Gulf, C. & S. F. Ry. Co., supra; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715; Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622.

In the instant case no findings of fact or conclusions of law have been filed or requested as the result of the hearing on the motion for new trial. It is, therefore, the duty of an appellate court to presume in support of the Trial Court's ruling that in passing upon the testimony of the jurors as witnesses the trial judge gave it the most favorable construction of which it was susceptible that no such misconduct occurred. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Menefee v. Gulf, C. & S. F. Ry. Co., supra; Galveston, H. & S. A. R. Co. v. Waldo, Tex.Civ.App., 77 S.W.2d 326; Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493.

Summarizing the testimony offered on the motion for new trial, it appears that the jury started deliberating about 2:30 p. m. but no verdict was reached until the next afternoon. P. K. Noland was selected as foreman and immediately thereafter he read the entire charge aloud. This took about 30 minutes. The jury then started considering the Issues. Beginning with Special Issue No. 1, after a short discussion, it was answered in the affirmative, that appellant failed to keep a proper lookout. Upon passing to Special Issue No. 2, inquiring as to whether such failure was a proximate cause of the collision, an extended discussion prompted the foreman to ask the Trial Court in writing for a better definition. This was refused with an admonition to the jury to confine the discussion to the charge. Of the five jurors who testified, Mr. Noland, Mrs. Finley and Mr. Kelley said that the first 4 to 7 Special Issues were answered in the affirmative in numerical sequence on the first day before they recessed. Mr. Noland implemented this testimony by saying he had the charge and the answer sheet and the answers were never changed. Their testimony was amply sufficient to support an implied finding by the Trial Court that the first 4 Issues were answered before the jury recessed at approximately 5 o'clock, although Mr. Kendrick testified that the Issues on proximate cause were 'skipped' the first day and were 'filled in' the second day. The fifth juror, Mr. Overton, did not recall 'whether the jury reached a final decision on that particular Issue [proximate cause] that day or not' although he reasoned 'the best I recall we answered more than the two question, so evidently we passed that one up.'

The proof showed, however, that both Mr. Kendrick and Mr. Noland, as well as several other jurors who remained unidentified, upon reaching their homes after they had recessed for the day, 'looked up' the word 'proximate' in a dictionary. Mr. Kendrick, after stating he did, testified that the first thing that was brought up the next morning was the definition of 'proximate cause' when Mr. Noland placed on the table a typewritten 'meaning' of the word 'proximate' which his secretary had typed that morning before he came to the courthouse, and it was passed around to the jurors, the majority of whom said it was the same definition they had found when they looked up the word the night before.

Mr. Noland, though admitting he had 'gone to Webster's Dictionary' the night before, testified he did not think he brought a written definition of the word 'proximate' that morning, though he had intended to have one copied because he was 'tied up with visitors from the home office' and was trying to get his secretary 'lined up' that morning before he came over, and did not think he brought it.

Mrs. Finley testified that she believed that Mr. Noland read a definition the next morning from a piece of paper and then put it in his pocket. Mr. Overton, however, said he did not remember the jury's considering any paper other than the Court's charge. Under this testimony it must be presumed that the Trial Court found in support of his ruling that Mr. Noland did not bring into the jury room a copy of a definition of the word 'proximate'.

Mr. Overton said that after the jury had recessed, he had consulted two law books on Torts, one of which was by Prosser. From reading them he opined that 'many legal minds are confused on the meaning of proximate cause; that it has no clear, precise definition' and that what he read 'didn't clarify' what the term meant and didn't hlep him one way or the other in deciding what proximate cause meant. No proof was offered to show what he actually read in the law books.

'Mr. Noland testified that while appellant's damage Issue (Special Issue No. 19) was being considered he said that he, being employed by an oil company, was aware of the policy that an employee, being off under certain conditions, would probably receive her pay from her employer, but that he stated to the jury, 'I didn't feel we could consider it. It was just a question of whether there was a loss,...