Gonzalez v. Broussard
| Decision Date | 29 December 1954 |
| Docket Number | No. 12770,12770 |
| Parties | Arnuifo GONZALEZ, Appellant, v. Roberto BROUSSARD, a Minor, by and through his Next Friend, A. L. Broussard,and A. L. Broussard, Individually, Appellee. |
| Court | Texas Court of Appeals |
Bobbitt, Brite & Bobbitt, San Antonio, J. G. Hornberger, D. O. Gallagher, Jr., Laredo, for appellant.
John Noyola, Laredo, for appellees.
This is an appeal from a judgment in favor of Roberto Broussard, a nine-year-old minor, and A. L. Broussard, his father. The judgment awarded the minor $4,000 and his father $412. The judgment was for injuries suffered by the child and for medical and hospital bills owed by the father, because Roberto broke his leg when he stumbled over a rock located on a playground provided at the appellant's drive-in theatre.
The judgment must be reversed by reason of the combined effect of several overt acts of misconduct which occurred during the deliberations of the jury. (1) One juror told other jurors of his personal experiences with a broken leg, how he was in the military service and was relieved of duties for six months by reason of a broken leg, how others in the hospital also had 'broken bones'; that some persons were there when he came and were still there when he left, that it was difficult to determine whether a bone was properly set, whether it would mend properly or whether it would give future trouble. The medical testimony for the minor plaintiff failed to support these unsworn remarks about the personal experiences of the juror. El Paso Electric Co. v. Cannon, 128 Tex. 613, 99 S.W.2d 907; St. Louis Southwestern Ry. Co. of Texas v. Robinson, Tex.Com.App., 285 S.W. 269, 46 A.L.R. 1507. (2) There were undiscussed conjectures about whether the defendant was protected by insurance. (3) Casual mention of the plaintiff's need to pay attorney's fees was heard by almost all the jurors. (4) There was mention that A. L. Broussard was an employee of the defendant, and that he would probably lose his job, since he had brought the suit, and for that reason would be entitled to damages to support his family. (5) Some jurors stated that they were familiar with the playground area of the drive-in theatre and that the area was dangerous. (6) There were statements by several jurors that irrespective of the decision of the jury, a higher authority would pass on the case. The mention of insurance and attorney's fees was promptly rebuked and they were not thereafter mentioned, but many jurors heard each of the above instances of misconduct. The statements about the juror's personal experiences with broken bones is not disputed.
Under the principle that a number of instances of misconduct, though harmless if taken separately, may in combination call for a reversal, we must reverse this cause. Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451; Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642; Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302.
Other points in the case attack the sufficiency of the evidence to support the verdict in view of the duty owed a licensee. The minor child was present on the premises as a licensee rather than an invitee. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306. His father was an employee on duty and the child and his mother came to see the picture free of charge. This was knowingly permitted by the owner. This practice had continued for a long period of time prior cot the accident. There also was proof that the owner knew of the presence of rocks in the area; that he had on many occasions seen them; that children brought them and other articles into the area rather freely. There was also proof of dim lighting which obscured the objects permitted to accumulate in the area. All these things were well known to the owner.
Section 331, American Law Institute Restatement of the Law of Torts, speaks of a gratuitous licensee as one whose presence upon the premises is solely for the visitor's own pupose in which the possessor of the property has...
To continue reading
Request your trial
-
Mellon Mortgage Co. v. Holder, 090999
...have been entering the land. Cf. Hall v. Holton, 330 So. 2d 81, 83 (Fla. Dist. Ct. App. 1976); Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex. App.- San Antonio 1954, writ ref'd n.r.e.). And implied consent may only be found when an owner with actual knowledge fails to take reasonable step......
-
Holder v. Mellon Mortg. Co.
...the privilege of entering is extended as a mere favor by express consent or by general custom. Gonzalez v. Broussard, 274 S.W.2d 737, 739 (Tex.Civ.App.--San Antonio 1954, writ ref'd n.r.e.) (classifying employee's child injured at drive- in theater's playground while on premises with owner'......
-
EL Farmer & Company v. Hooks, 5386.
...a licensee except to refrain from causing him injury by active negligence or wilful, wanton, or reckless conduct. Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737. But here both appellant and appellee were on the premises as invitees of Kerr-McGee. Appellee was not there pursuant to dire......
-
Buchholz v. Steitz, 17531
...himself. Bass v. Cummings, supra; Gulf Refining Co. v. Beane, 133 Tex. 157, 127 S.W.2d 169 (1937); Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App., San Antonio 1954, writ ref'd n.r.e.); Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 55 A.L.R.2d 516 (1955); Laube v. Stevenson, 137 Co......