Jones v. Elliott

• Decision Date: 11 March 1953
• Docket Number: No. 4913,4913
• Citation: 259 S.W.2d 288
• Parties: JONES et al. v. ELLIOTT et al.
• Court: Texas Court of Appeals

Page 288

259 S.W.2d 288

JONES et al. v. ELLIOTT et al.

No. 4913.

Court of Civil Appeals of Texas, El Paso.

March 11, 1953.

Rehearing Denied April 29, 1953.

Second Rehearing Denied June 3, 1953.

Perkins, German, Mims & Bell, Midland (W. P. Z. German, Jr., and William H. Crenshaw, Midland, of counsel), for appellants.

Bezoni, Barton & Saxe and Edwin T. Stitt, Midland, for appellees.

McGILL, Justice.

This is an appeal from an order of the District Court of Midland County, 70th Judicial District, overruling a motion for new trial in a case in which appellees as plaintiffs recovered a judgment against appellants as defendants for some twenty thousand dollars. Originally there were three defendants in the cause, appellants, E. B. Young and Acme Plumbing & Heating Company. On motion of appellants the court granted a severance as to defendant Acme Plumbing & Heating Company, and ordered the defendants Jones Butane Service and E. B. Young to proceed to trial, but during the trial, on motion of appellees the defendant E. B. Young was dismissed from the case and appellants were the only remaining defendants.

The suit was for damages to a house, and for personal injuries as the result of an explosion of butane gas under the house, which occurred on July 23, 1949. Trial was to a jury, and on findings favorable to plaintiffs the court rendered judgment for $6,000 as damages to the house, and for $14,000 as danages for personal injuries to the plaintiff, Una C. Elliott.

We are confronted at the outset with a motion by appellees to dismiss the appeal. This motion was filed on September 6, 1952, and was passed for consideration with the case. The grounds of the motion are that the appellants did not file their appeal bond within the time prescribed by the Rules of Civil Procedure. Rule 356 R. C. P. provides that 'the bond shall be filed * * * within thirty days after the date of rendition of judgment or order overruling motion for new trial.' (Emphasis ours.)

Rule 353(a) R. C. P. provides that notice of appeal may be given in open court or in the order overruling the motion for new trial. Rule 330(k) provides that motion for new trial shall be filed within ten days after judgment is rendered and may be amended by leave of the court within twenty days after it is filed, and Rule 330(j) provides that all motions and amended motions for new trials must be presented within thirty days after the original motion or amended motion is filed, and must be determined within not exceeding 45 days after the original or amended motion is filed. Appellants literally complied with these rules. The judgment was rendered on May 7, 1952. The original motion for new trial was filed on May 17, 1952, and the amended motion for new trial was filed on June 6, 1952. On June 11, 1952, the court overruled defendant's 'motion for new trial' which obviously refers to the first amended motion for new trial because it refers to supporting affidavits, and this is the only motion in the transcript which has any supporting affidavits. Defendants excepted and gave notice of appeal in the order overruling the motion for new trial. They had previously given notice of appeal in the judgment rendered on May 7, and it is appellants' contention that they were required to file their appeal bond within thirty days from that date. They did not file their appeal bond until July 1, 1952, which was within thirty days from the notice of appeal given in the order overruling the motion for new trial. The fact that in the judgment rendered May 7, 1952, appellants excepted and gave notice of appeal is immaterial. This notice was abandoned and superseded by the notice given in the order overruling the motion for new trial of June 11, 1952, and the time in which appellants were required to file their appeal bond began to run from that date. Dittman v. Model Baking Co., Tex.Com.App., 271 S.W. 75; McDonald, Texas Civil Practice, Vol. 4, p. 1507, Sec. 18, 31.

The motion to dismiss is overruled.

Appellants have briefed twenty-four points. Their twenty-third point asserts that the court erred in refusing to hear oral testimony of two jurors as to jury misconduct, proffered by appellants in open court on the day set for the hearing on their first amended motion for new trial, as required by Rule 327. The material misconduct alleged in their first amended motion is that upon their deliberation the jury discussed and considered that these defendants carried insurance against loss by reason of liability in a case like this, notwithstanding there was no evidence at the trial to that effect, and no insurance company was a party to the suit; that they discussed and considered that their answer to Special Issue No. 2 was controlled and governed or should be materially influenced by some one or more sections, paragraphs, sentences or other portions of a booklet entitled Gas Utilities Docket No. 141 other than the portions of such booklet given them in charge by the court, if in fact such portions were so given them in the charge; that one or more of the jurors agreed with one or more of the other jurors that if such other jurors would answer Special Issue No. 2 'Yes' such agreeing jurors would reduce the cash figure which the jury had already determined as its answer to Special Issue No. 8, and such agreement was consummated; that one or more of the jurors after having determined that upon the basis of the evidence and of the law given them in charge their answer to Special Issue No. 2 was 'No', agreed with one or more of the other jurors that they would agree to a 'Yes' answer to Special Issue No. 2 regardless of their predetermination to answer such special issue 'No' upon condition that such other juror or jurors would agree to reduce the cash settlement which had already been determined by the jury as its answer to Special Issue No. 8, and such agreement was consummated; that they discussed, considered and were influenced by a belief that plaintiffs' attorneys had a contract or other arrangement with plaintiffs whereby such attorneys would become entitled to a large share of any recovery mady by plaintiffs in this case; that they discussed, considered, and in reaching their verdict some or all of them were influenced by a consequent belief that regardless of the evidence and the law given them in charge by the court, Una C. Elliott was entitled to cash damages for sole reasons that an explosion had occurred and she was involved in it, and some or all of said jurors believed that since they had determined to answer Special Issue No. 6 'No' unless they answered Special Issues No. 2 and 3 'yes', Una C. Elliott would not be entitled to recover a judgment, and such considerations were used in answering Special Issues Nos. 2 and 3 'yes'; that they discussed and considered that the plaintiffs were entitled to a judgment for damages notwithstanding instruction of the court that in reaching their verdict they were not to be concerned as to what the judgment should be; that they discussed, considered, and in reaching their verdict some or all of them were influenced by a consequent belief that the plaintiffs were entitled to recover a judgment for damages against these defendants, and that in order to enable the court to render such a judgment it was necessary that Special Issue No. 2 be answered 'yes' notwithstanding instructions of the court that in reaching their verdict they were not to be concerned as to the amount the judgment should be; that they discussed, considered, and in reaching their verdict some or all of them were influenced by the belief that in answering Special Issue No. 2 'yes' the plaintiffs would become entitled to a judgment, whereas if they answered Special Issue No. 2 'no' the plaintiffs would not be entitled to a judgment. The defendants attached to and made a part of their motion for a new trial an affidavit by one of the jurors, C. W. Post, which we think it necessary to reproduce in full:

'Affidavit.

'On the day and year hereinafter indicated, before me, the undersigned, a Notary Public in and for Midland County, Texas, personally appeared C. W. Post, known to me to be such person, who after having been duly sworn upon oath, stated:

'I was selected, sworn, and I served as a juror in the trial of Cause No. 6081, Una C. Elliott, et vir, vs. Acme Plumbing and Heating Company, et al, in the District Court of Midland County, Texas, which was tried commencing on the 31st day of March, 1952.

'During the deliberations of this jury, there was a general discussion concerning whether or not Jones Butane Service carried insurance against loss by reason of liability in a case like this and, judging from the statements of most of the jurors, it seemed to be the opinion that the Joneses had insurance at the time the explosion took place. I just naturally assumed that they were insured.

'During the discussions in the Jury Room, some one or more of us decided to ask for the book containing the Rules and Regulations of the Railroad Commission. This was when we were first talking about Special Issue No. 2, and someone said that the law, according to the Railroad Commission's Rule, required that the system had to be checked before putting in the gas. So, we asked for the book, and the Deputy Sheriff brought it to us. We were not told by any one just what part of the book we should look at, and one or two members of the jury began looking through the booklet. Some of the jurors looked through the whole book to try to find whether it said anywhere that the butane system must be tested just before putting gas in it. These fellows found something in this book that they thought applied to the case, and each time they would read that part. We finally skipped No. 2 and 3, and went on to the rest of the issues, and then, when we came back to Issue No. 2, some of the jurors began reading these rules in the booklet, and one of them said, 'Well, if that's the way it is, then I'll...