Gulf, C. & S. F. Ry. Co. v. Harvey

• Decision Date: 28 October 1925
• Docket Number: (No. 527-4207.)
• Citation: 276 S.W. 895
• Parties: GULF, C. & S. F. RY. CO. v. HARVEY.
• Court: Texas Supreme Court

276 S.W. 895

GULF, C. & S. F. RY. CO. v. HARVEY.

(No. 527-4207.)

Commission of Appeals of Texas, Section B.

October 28, 1925.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Beatrice Harvey by next friend, against Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant was reversed by Court of Civil Appeals (261 S. W. 197), and defendant brings error. Judgment of Court of Civil Appeals affirmed, judgment of trial court set aside, and case remanded for new trial.

Terry, Cavin & Mills, of Galveston, W. W. Hair, of Temple, and Lee, Lomax & Wren, of Fort Worth, for plaintiff in error.

A. L. Curtis, of Belton, and Winburn Pearce, of Temple, for defendant in error.

SHORT, J.

The only question here presented involves the alleged misconduct of the jury, the particular nature of which will be discussed. This suit was instituted in the district court of Bell county by defendant in error, as plaintiff, to recover damages of the plaintiff in error because of personal injuries sustained by her as the result of falling in the aisle of a railway coach upon which she was a passenger. Upon a trial the case was submitted upon special issues, and the jury answered, in effect, that the plaintiff in error was guilty of doing the things alleged in the petition whereby the defendant in error received injuries, and that in doing these things it was guilty of negligence, and that the things alleged as having caused the injuries was the proximate cause of the injuries inflicted; the amount of the damages being assessed at $2,500. However, the jury found, in response to an issue submitted, that the defendant in error was guilty of contributory negligence in going back to the end of the car and standing while the same was in motion. This verdict having been returned, the trial court rendered judgment that the defendant in error take nothing. The motion for new trial, which was overruled, was based upon the ground that the answer returned as to contributory negligence did not represent the verdict of a majority of the jury, and resulted from the misconduct, mistake, or misunderstanding of the juror who wrote the answer directly contrary to the answer as given by a majority of the jurors, and also that the findings of the jury were the result of the misconduct on the part of the jury in receiving and considering other evidence in communication than that which had been introduced before them, because the answers were conflicting, and because there was not sufficient evidence to support the finding of contributory negligence; "also, when the amount was agreed upon, it was the further agreement questions then to be answered favorably to plaintiff." Upon appeal to the Court of Civil Appeals the judgment of the trial court was reversed and the case remanded upon the ground that the jury was guilty of misconduct. The motion for rehearing in the Court of Civil Appeals having been overruled, the application to the Supreme Court was granted, and the case is here for our consideration upon the record, of which the foregoing is a brief synopsis.

The plaintiff in error submits 12 assignments of error, each and all of which assails the judgment of the Court of Civil Appeals as being erroneous. Since we have concluded that the judgment of the Court of Civil Appeals is correct, and that the case must be retried, we do not think it necessary to set out and discuss in detail each one of these assignments of error. The bill of exception taken to the action of the trial court in overruling the motion for new trial affirmatively shows that all of the members of the jury testified with reference to the alleged misconduct, and that the trial judge, after hearing all of this testimony, made the following statement:

"Believing the effect of the motion and testimony is but to impeach the verdict of the jury, and was not such misconduct as is contemplated by the statute, it becomes my duty to overrule the motion."

We cannot escape the conclusion that the true construction of this language is that the trial court did not attempt to find any facts involved in the controversy, but was of the opinion that the evidence was incompetent as a matter of law to establish any of the allegations of misconduct in the motion, and for that reason, the motion was overruled. If the trial judge had not affirmatively stated the ground upon which he based his action in overruling the motion, the Court of Civil Appeals, as well as this court, would have been compelled to accept the proposition that the trial court has passed upon the truth of the allegations as to misconduct and had found them not sustained. This character of finding on the part of the trial judge would have compelled the Court of Civil Appeals, as well as this court, to determine whether the evidence taken and considered by the trial judge left it reasonably doubtful as to the effect the alleged misconduct had upon the verdict of the jury, giving to the judgment of the trial judge due weight and consideration in passing upon this question. However, we are not confronted with this situation. But the question is presented whether the statement made as quoted is correct, as a matter of law.

The jury began to consider the case Friday evening, and the first vote taken on the question of contributory negligence was about midnight; eight of the jury voting "No" and the remaining three "Yes," one juror having been by agreement excused from the panel. One of these three jurors who voted "Yes" soon after came over to the majority view to answer this question "No," but jurors Henderson and Taylor maintained that it should be answered "Yes." No agreement was reached Friday night on this question. On the following morning juror Henderson induced the other jurors to go with him before the court in order that he might propound the following question prepared by him to the court:

"Taking into consideration paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 in your charge, together with the special issues 1, 2, 3, 4, 5, 6, can this jury answer the first question `Yes' and the second question `No,' and find any damages for the plaintiff?"

The court answered the inquiry as follows:

"The matters inquired about by you are as definitely and as clearly covered by the court's charge as it is permissible for the court to instruct you, and you should answer said issues according to the court's instructions, without reference to the legal effect of what your answers may be."

When this instruction had been received, and the jury had retired, it proceeded to take up and discuss the question relating to damages. The jury disagreed on this question; some being for a large amount, some for a small amount, while juror Henderson was averse to allowing any. This discussion upon this question continued until some time during the afternoon of Saturday without any agreement having been reached. In the meantime, no mention had been made of the issue of contributory negligence. The jury being disagreed on the question of damages as above stated, juror Henderson then proposed that, if all the jury would agree upon $2,500 damages, that then he as well as all of the jury would answer the questions in such a way as to allow the defendant in error a recovery for that amount. This proposition was unanimously accepted. They then proceeded to read the questions from the beginning and insert the answers in accordance with this agreement to each question as reached. However, when they reached the question as to whether defendant in error was guilty of contributory negligence, there arose a dispute as to whether it was material to the agreement which they had made that this issue be determined in the negative or in the affirmative. When this dispute arose, nine of the jurors testified that either Henderson or some other juror made the statement that it would make no difference how that question was answered, as the defendant in error would get the money anyway under the other answers finding the plaintiff in error guilty of negligence and allowing damages. Henderson denied that he made such statement, but admitted that he made the proposition to give $2,500 damages, and agreed to answer the questions propounded by the court so as to allow her to recover the damages so assessed. Seven of the jurors testified that they voted "No" on the question of contributory negligence at all times, and thought it had been so answered until...