Dumas v. Dumas Bros. Mfg. Co., Inc.

• Decision Date: 02 April 1976
• Parties: Samuel T. DUMAS, Jr., d/b/a Samuel Dumas Construction Co. v. DUMAS BROS. MANUFACTURING COMPANY, INC., a corp. SC 1379.
• Court: Alabama Supreme Court

Page 426

330 So.2d 426

295 Ala. 370

Samuel T. DUMAS, Jr., d/b/a Samuel Dumas Construction Co. v. DUMAS BROS. MANUFACTURING COMPANY, INC., a corp.

SC 1379.

Supreme Court of Alabama.

April 2, 1976.

Hill, Hill, Carter, Franco, Cole & Black, and John M. Milling, Jr., Miller & Hoffman and H. E. Nix, J., Montgomery, Lee B Williams, Grove Hill, for appellant.

Brown, Hudgens & Richardson, Alton R. Brown, Jr., Claude D. Harrell, Mobile, Wyman O. Gilmore, Grove Hill, for appellee.

EMBRY, Justice.

This appeal is from judgment on jury verdict for $234,000 in favor of plaintiff Dumas Brothers Manufacturing Company, Inc. (Dumas Brothers) and against defendant Samuel T. Dumas, Jr., d/b/a Samuel Dumas Construction Company (Dumas).

We affirm.

The Pleadings

The action for damages arose from destruction by fire of a building and its contents of furniture products, raw materials, supplies and equipment, all incident to plaintiff's furniture manufacturing business.

By its last amended complaint Dumas Brothers asserted the right to recover of Dumas for breach of duties arising from the relationship of the parties under an oral agreement whereby Dumas undertook construction of additions to premises of Dumas Brothers.

The breach of the those duties was said to consist of negligence in causing the destructive fire by: (1) failing to warn a workman of the presence of highly flammable material at a place where defendant knew or should have known it to be and causing or permitting that workman to use a burning torch (to burn or cut metal) in close proximity to that material. (2) Defendant Dumas using or causing the torch to be used at the same place after defendant Dumas had been warned by plaintiff Dumas Brothers against such use.

Issue was joined by answer. It was a denial (general issue) of the material allegations of the complaint and alleged contributory negligence upon the part of Dumas Brothers.

Dumas filed Motion for Directed Verdict on conclusion of the evidence. It was denied. Following verdict he filed Motion For Judgment Notwithstanding The Verdict, or in the alternative, Motion For New Trial. After a hearing of the latter motion, at which evidence was taken, the motion was denied. This appeal ensued.

The Facts

Defendant Dumas entered into an oral agreement with plaintiff Dumas Brothers to make additions to a warehouse owned by the latter. Dumas was aware of the nature of the business (manufacture of furniture) engaged in by Dumas Brothers, the highly flammable nature of foam rubber used in that business and that such was stored in the warehouse to which he was making additions. Under the terms of the rather loosely defined oral agreement it appears there was an understanding that from time to time during construction Dumas could call upon Dumas Brothers for help from its employees, if needed, although any such employee would remain in the pay of Dumas Brothers.

The fire, the vortex of controversy in this case, originated in the ceiling of a building to which an addition was being constructed. Its cause was sparks falling from the site of a cut being made n metal by use of a cutting torch. Those sparks fell upon highly flammable foam rubber stored in the existing building. The torch was being used at the time by Jimmy Bayles who was on the payroll of Dumas Brothers. Dumas was there doing the cutting at the particular spot using a cutting torch under the following circumstances. When Dumas had embarked upon the job he was told by Dumas Brothers that it had a qualified welder and burner and that anytime he needed one to send and get him, not to hire one. Before the time at which the fire started Dumas had been told by Dumas Brothers not to use a cutting torch or cutting tool to cut the metal beams near the foam rubber.

Bayles had been sent to Dumas for the purpose of cutting with a torch upon Dumas' request for '* * * a man with a torch to do some burning.' Dumas did not inform Dumas Brothers of the location of the spot where the 'burning' was to be done--on the beam adjacent to where the foam rubber was stored in the warehouse. Dumas Brothers was not otherwise informed that such 'burning' or cutting was to be at that spot. Dumas instructed Bayles where to cut. Dumas then left the situs of the cutting and was not present when the fire started. The facts recited in the foregoing summary were adduced from sharply conflicting evidence in the record about which there is heated disagreement expressed by the parties in their respective briefs.

The Issues

The assignments of error present for review these issues: (A) On a hearing of the motion for judgment notwithstanding the verdict, or in the alternative for new trial, was it error to exclude an affidavit and testimony of a juror offered to impeach the verdict? (B) Did the giving of certain written jury instructions at the instance of Dumas Brothers injuriously affect the substantial rights of Dumas? (C) Did prejudicial error result from the failure of the trial court to hear and record the testimony of a juror offered to impeach the verdict?

There were other errors assigned but not urged, therefore we will not deal with them.

A

On hearing of his motion for judgment n.o.v. or in the alternative for a new trial, Dumas offered the affidavit of a juror. In pertinent part it reads:

'* * * I was a member of the jury in the case of Dumas Brothers Manufacturing Company, Inc., Vs. Samuel T. Dumas, Jr., d/b/a Samuel T. Dumas Construction Company, which case was tried in the Circuit Court of Clarke County, Alabama, during the week of February 4, 1975. After the case was completed and we went to the jury room to decide the case, the discussion in the jury room was about insurance and that Samuel Dumas, the defendant, would not be hurt by any verdict which we might return against him for damages. The factrs of the case were not discussed and there was no discussion about Samuel Dumas being negligent or at fault. I did not and do not believe from the evidence which I heard that the fire which resulted in the lawsuit was in anyway the fault of Samuel Dumas. From the discussion about insurance in the jury room, I was led to believe that Samuel Dumas had plenty of insurance coverage and that he would not be liable for any part of the judgment which we returned against him. The only reason that I voted to return a verdict in the amount of $234,000.00 against Samuel Dumas was because of the fact that I believed from the discussion in the jury room that he had plenty of insurance coverage.'

The law and public policy alike declare that affidavits of jurors with respect to occurrences in the jury room may not be received for the purpose of impeaching their own verdict. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341. The basis for the rule is expressed in Gulf States Steel Co v. Law, 224 Ala. 667, 141 So. 641, as follows:

"The court committed no error, when it declined to consider the affidavit of one of the jurors trying the case, who undertook to testify to his own and felow jurors' action and conduct while considering the case. A due regard for the proper and orderly administration of the law, a proper regard for the solemnity of verdicts of jurors, as well as a sound public policy forbid that members of a jury, after they have made their deliverances in court, should be allowed to impeach their verdicts. To give consideration to such affidavits would tend to bring the law and its administration into disrepute. * * *."

quoting from Weekley v. Horn, supra.

Dumas contends the trial court erred in not accepting the juror's affidavit and testimony which exposed jury discussions during its deliberation. He says the case falls within an exception to the general rule. The exception is where the affidavit tends to show the Extraneous facts which have influenced the verdict. Improper communications between jurors themselves are not extraneous influences or extraneous facts. Weekley v. Horn, supra. Dumas contends that the content of the affidavit here stating the jury failed to discuss the facts in evidence compels by inference the conclusion that what it discussed was necessarily extraneous facts. We cannot agree with this.

The affidavit offered revealed merely what was discussed during jury deliberation; liability insurance coverage. The affidavit was properly excluded. It only divulged the nature and content of the jury's deliberation. That, without regard to its propriety or lack of it, is not Extraneous.

B

The written jury instructions given at the request of Dumas Brothers about which Dumas complains are:

Number Four (4)

'The Court charges the jury that in determining whether the general employer or one to whom the employee has been loaned is responsible for the employee's acts, he is to be deemed the employer who has the choice, control and direction of the employee in the service to be performed. If the jury is reasonable satisfied from the evidence in this case that at the time of the occurrence of the fire alleged in the complaint, Jimmy Bayles was then and there performing duties which in all details were according to the choice of and under the control and direction of the defendant, Samuel T. Dumas, in that event your determination should be that Jimmy Bayles was then and there acting as the employee or servant of the defendant, Samuel T. Dumas; and the Court further charges you that if you are reasonably satisfied by the evidence in this case that alleged fire was the direct and proximate result of the negligence of Jimmy Bayles in performing his work at that time and that Plaintiff's damage, as claimed in this case, proximately resulted from that negligence, then your verdict should be for the plaintiff.'

Number Five (5)

'The Court charges the jury that an employee may be in the general service of one person or firm and nevertheless with respect to some particular work may be transferred to the service of another person or firm in such way that the employee becomes,...