Estate of E. Northcutt, In re
| Decision Date | 31 October 1960 |
| Docket Number | No. 6994,6994 |
| Citation | 340 S.W.2d 510 |
| Parties | In re ESTATE of Hester E. NORTHCUTT, Deceased. |
| Court | Texas Court of Appeals |
Lovell & Lyle, C. D. Bourne, Jr., and H. B. Porter, Dumas, for appellants.
Richards & Ferguson, Dalhart, Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellee.
This case involves a will contest. The County Court of Moore County on December 5, 1958, after the contest of the will was heard, admitted it to probate. Appeal was perfected by contestants to the District Court, and a jury in that county on March 14, 1959, found the testatrix was of sound mind at the time she executed the will. The District Judge granted a motion for new trial and the case was tried again by a District Court jury and a verdict upholding the will again rendered on September 25, 1959. The trial court entered his judgment from this verdict on October 6, 1959, and contestants' amended motion for new trial was overruled on November 24, 1959. Appeal has been perfected from the latter judgment.
Testatrix was Mrs. Hester E. Dooley, who, after Mr. Dooley died, married W. L. Northcutt. She will be hereinafter referred to as Hester E. Dooley or as testatrix. Burtha Mary Dooley, a daughter, who was named in the will as independent executrix, filed application for probate of the will. Three of the sons of testatrix and her surviving husband, W. L. Northcutt, filed contests of the probate of the will but only Robert Lee Dooley has perfected his appeal and will be referred to hereinafter as appellant. The daughter seeking probate of the will, Burtha Mary Dooley, will be referred to as appellee.
Nine points of error are brought forward. Four points concern themselves with jury misconduct and the action of the trial court in refusing to hear testimony thereon. Point five urges reversible error in argument. Point six asserts The last three points raise respectively, no evidence, insufficient evidence, and the weight and preponderance of the evidence.
In appellant's amended motion for new trial, in subparagraphs (1), (2), (3) and (4) thereof, he urged there was jury misconduct of such extent as to require the granting of a new trial. Jury misconduct was not raised in the motion for new trial but only in the amended motion. No affidavits were attached showing material jury misconduct. In fact, no affidavits whatever were attached.
The trial court entered his judgment upon the second jury verdict on October 6, 1959. Motion for new trial was filed on October 16, 1959, within the ten-day period and amended motion for new trial filed on November 5, 1959. The hearing on said motion was set for November 24, 1959, at which time appellant offered the testimony of two jurors upon the question of jury misconduct. The testimony was objected to for the reason that no affidavits of jury misconduct were attached and the Court sustained the objection and refused to hear the testimony.
Since no affidavits were attached to the amended motion for new trial because of jury misconduct, and the motion did not disclose a reasonable explanation and excuse as to why affidavits could not be secured, it remains for us to first determine if the trial court under such circumstances abused its discretion in not hearing the testimony of the two jurors offered. Roy Jones Lumber Co. et al. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, Syl. 2-4, at page 646. We do not believe the record shows an abuse of discretion.
Appellant contends that the amended motion itself, without affidavits attached, particularized the jury misconduct without the necessity of having the affidavits. We have studied this motion carefully and find ourselves unable to agree with appellant. Subparagraph (1) contends there was jury misconduct because 'several of the jurors' discussed the fact that they had known people who had suffered from hardening of the arteries and high blood pressure without any effect upon their mental capacity.
In the first place this testimony was before the jury through the witness, Dr. Puckett, and was a proper subject of discussion because of the contention that such conditions were evidences of a mental breakdown. Secondly, the statement simply says 'several of the jurors' without pointing out which ones, thus making more of a 'fishing expedition' than something to justify hearing testimony of jurors. Finally, there is not anything in the statement to indicate the jury was influenced by such discussion to answer the question presented to them in the manner in which they did answer it.
By subparagraph (2) appellant urges jury misconduct because 'those of the jurors' who knew the Dooleys stated in the jury room that having known the Dooley family they knew of their own knowledge that testatrix did not become mentally incompetent until sometime after the date of the signing of the will. Again no juror was named and no indication given to show the jury did not answer the question submitted from the abundance of testimony that testatrix was of sound mind at the time of the execution of the will. There was ample testimony to show she was of sound mind before, at the time of, and subsequent to the date the will was made.
Subparagraph (3) simply says that one juror, without naming him, let it be known that he knew the testatrix and other Dooleys personally and was voting to uphold the will. This certainly is no reason bo say, whoever that person may have been, that he did not find testatrix of sound mind from the evidence to that effect by the numerous witnesses.
Subparagraph (4) complains that 'at least one juror', without naming him, said he had experienced will contests in his own family and, consequently, was going to vote to uphold the will. There is no particularity in such statements and nothing to change the presumption that the jurors answered the question from the evidence given in the trial. If allegations such as these just discussed proceeded from anything more than suspicion, appellant surely could have named some of the jurors who supposedly made the statements complained about. He cited the case of Freedman Packing Co. et al. v. Harris, Tex.Civ.App., 160 S.W.2d 130 for authority that a motion such as we are considering here would require no higher standard of pleading than would a plaintiff in a cause of action. Even if such statement is correct, and we are not here passing upon that question, such statements as 'at least one juror' and 'those of the jurors who knew the Dooleys' would be subject to exceptions in pleading a case for failure to advise the opposite party which juror or jurors he had reference to in his pleadings.
We have a far different situation here to that which the Court had in the Roy Jones Lumber Co. case. There the motion itself alleged 'that in their deliberations the jury discussed the fact that defendants would not have to pay the damages awarded because they had insurance coverage; plaintiff's expenses for X-rays, medical attention and hospitalization; his probable outlay for attorney's fees; and the financial straits of plaintiff's father.' And it was further alleged 'that the amount awarded was fixed by a quotient verdict and at such sum that the jury thought petitioners would pay without 'kicking it around in the higher courts." It is clear from reading the case that all those matters were outside the record. Additionally, in that case the statements of the jurors with respect to the discussion of insurance in the jury room were before the court and the jurors present to take the witness stand and swear the statements were true and that they signed them. Whereas, in our case there were no written statements and the amended motion left the Court and opposing counsel in the dark as to the name of any juror who would testify to jury misconduct and made it impossible for appellee to meet the contentions without having to seek out and question each juror. Furthermore, we believe the motion itself in that case showed reversible error, whereas the motion in our case did not. We believe there is also an important distinction on the question of abuse of discretion in that it was not until appellant had announced ready on the motion and placed a juror on the stand as a witness that he urged the Court the hearing should be recessed until he could secure other evidence and attempted to persuade the Court he should hear the two jurors offered. We further believe that even in the testimony of the jurors offered on appellant's bill of exception that he failed to discharge the burden required under Rule 327, Vernon's Ann.Texas Rules to show that 'it reasonably appears from the evidence both on the hearing on the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.' Our Supreme Court has recently held that such burden is made by the complaining party by showing that the trial which resulted in a judgment against him was materially unfair. Texas Employers' Ins. Ass'n v. McCaslin, Tex., 317 S.W.2d 916. We are completely unable to find from this record where such burden was discharged.
Mr. E. E. Coons, the lawyer who drew the will and witnessed it and who represented testatrix's deceased husband, testified she was of sound mind and even came back to see him after she married Mr. Northcutt to inquire if her marriage would affect the will. He also testified that at the time she made the will she knew what she wanted to do with her property and had her reasons for leaving it as she did. Mr. Wilson, another witness to the will, said he had talked to her about her land and cattle and never questioned her soundness of mind. There was a third witness to this will, Mr. Kidwell, and he testified he had known her more than 30...
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Rothermel v. Duncan, 6546
...conclusions may not be the most reasonable ones. Piedmont Fire Ins. Co. v. Dunlap, Tex.Civ.App., 212 S.W.2d 996; In re Northcutt's Estate, Tex.Civ.App., 340 S.W.2d 510. It was shown that August Blumberg, appellant's employee, was in attendance at court. That appellees' counsel called attent......