Fountain v. Ferguson

• Decision Date: 21 May 1969
• Docket Number: No. B--1349,B--1349
• Parties: James Walter FOUNTAIN, Petitioner, v. Faye S. FERGUSON, Respondent.
• Court: Texas Supreme Court

Page 506

441 S.W.2d 506

James Walter FOUNTAIN, Petitioner, v. Faye S. FERGUSON, Respondent.

No. B--1349.

Supreme Court of Texas.

May 21, 1969.

Rehearing Denied June 18, 1969.

Crenshaw, Dupree & Milam, Cecil Kuhne and Max Addison, Lubbock, for petitioner.

A. W. Salyars, Lubbock, for respondent.

POPE, Justice.

This appeal presents questions concerning jury misconduct. Faye S. Ferguson sued James Walter Fountain, a minor, and his father for personal injuries which she sustained when James Walter Fountain drove a vehicle into the rear of her vehicle. Fountain's defense was that he was confronted by an emergency when the brakes on his vehicle suddenly and unexpectedly failed. The trial court sustained a motion for instructed verdict for the defendant father, and rendered a judgment on a jury verdict that plaintiff take nothing as to James Walter Fountain. Plaintiff moved for a new trial grounded upon jury misconduct, but the trial court overruled her motion. She then appealed to the court of civil appeals without bringing forward a statement of facts. That court reversed the trial court judgment because of the jury misconduct about which plaintiff complained. 437 S.W.2d 323. We reverse the judgment of the court of civil appeals because the plaintiff did not sustain her burden to prove material misconduct which, from the record as a whole, probably resulted in harm. Rule 327, Texas Rules of Civil Procedure.

The answers to the special issues show the jury (1) found James Walter Fountain failed to keep a proper lookout, (2) refused to find that the failure to keep a proper lookout was a proximate cause of the collision, (3) refused to find that Fountain was driving at an excessive rate of speed, (4) found Fountain failed to turn his vehicle to avoid the collision, (5) but such failure was not negligence, (6) refused to find that Fountain drove his vehicle too closely behind the vehicle in which plaintiff was riding, (7) found that, on the occasion in question, Fountain was confronted by a sudden emergency, (8) and he did what an ordinary prudent person would have done under the same or similar circumstances. The jury further found that plaintiff sustained damages in the sum of $6,476.62.

Plaintiff filed a motion for new trial in which she complained of jury misconduct. At the misconduct hearing, plaintiff presented three jurors who testified about three forms of jury misconduct. There was evidence that the foreman, on two occasions, said that every man was innocent until proved guilty beyond a shadow of a doubt, and that he also told other jurors that the answers to the first two issues, stated above, were immaterial in view of the answers to the damage issues. Another juror made the statement that she once had the experience of her brakes failing and that she could understand how it could have happened to Fountain.

The one complaining about jury misconduct has the burden to prove the overt act of misconduct, that it was material misconduct, and 'from the record as a whole that injury probably resulted.' Rule 327, T.R.C.P.; Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951); White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947). In our opinion plaintiff did not discharge its burden to prove probable harm.

The trial court's order overruling the motion for new trial impliedly found that misconduct did not occur, since it contained no express finding of misconduct. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (Com.App.1932); St. Louis, B. & M.R. Co. v. Cole, 14 S.W.2d 1024, reh. den. 16 S.W.2d 534 (Com.App.1924). Plaintiff, however, says that findings of misconduct, whether express or implied, are not binding on the reviewing courts when all of the uncontroverted evidence is that the misconduct occurred. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961); Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943). The court of civil appeals sustained plaintiff's contention that the uncontradicted evidence showed the fact of misconduct. That court did not discuss the materiality of the misconduct or its probable harm, but concluded that harm resulted.

The point in time during jury deliberations at which misconduct occurs is an important factor in determining the probability of injury. Baird's Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646 (1957); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). As stated by the court of civil appeals, and as revealed by the undisputed evidence taken during the misconduct hearing, the alleged misconduct occurred after the jurors had answered all but the first two issues. The jurors testified that they began answering the special issues, but passed over the first two concerning lookout and then answered all of the rest of them in sequence. The jurors then returned to a consideration of the lookout issues after they answered issues exonerating Fountain on the other alleged acts of negligence and after finding he had acted in a sudden emergency as an ordinary prudent person would have acted. When the jurors were reconsidering and again discussing the lookout issues, the alleged acts of misconduct occurred. The jurors then found that Fountain failed to keep a proper lookout, but refused to find that his failure to keep a proper lookout was a proximate cause fo the collision. Plaintiff says the misconduct probably caused the jurors to answer the proximate cause issue adversely to her. She says a favorable answer would have created a conflict between the lookout findings and the emergency findings.

It is not necessary for us to determine whether a conflict in findings would exist as plaintiff contends, since plaintiff failed to prove that misconduct of the jury probably caused the adverse answer to the proximate cause issue. The record which plaintiff has brought forward consists only of the transcript and the record of the testimony developed at the misconduct hearing. The statement of facts on the main trial is not before us. Rule 327 expressly fixes the burden upon the one complaining of misconduct to prove that 'it reasonably appears from the evidence both on the hearing of the motion and the trial of the...