Kansas City Southern Ry. Co. v. Chaffin

• Citation: 658 S.W.2d 186
• Decision Date: 19 July 1983
• Docket Number: No. 9062,9062
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Benny K. CHAFFIN, Appellee.
• Court: Texas Court of Appeals

Page 186

658 S.W.2d 186

KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Benny K. CHAFFIN, Appellee.

No. 9062.

Court of Appeals of Texas,

Texarkana.

July 19, 1983.

Rehearing Denied Aug. 16, 1983.

C.B. Wheeler, William C. Gooding, Wheeler, Gooding & Dodson, Texarkana, for appellant.

Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, Harold Nix, Daingerfield, for appellee.

HUTCHINSON, Justice.

Benny K. Chaffin (Chaffin), here appellee, sued his employer, Kansas City Southern Railway Company (K.C. So. Ry.), here the appellant, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. (1972) for damages for injuries allegedly sustained in his employment by K.C. So. Ry. Prior to trial, K.C. So. Ry. admitted liability leaving the amount of damages, if any, as the sole issue for determination. This issue was heard by and submitted to a jury. The jury by its verdict assessed the damages in the amount of One Million Seven Hundred Sixty-eight Thousand Eight Hundred Sixty and no/100 Dollars ($1,768,860.00). The trial court entered judgment on the verdict, allowing an offset of Two Thousand Seven Hundred Fifty and no/100 Dollars ($2,750.00) for monies theretofor advanced to Chaffin.

K.C. So. Ry. by its first point of error contends that the judgment must be reversed because the trial court erred in admitting evidence as to the effects of inflation on Chaffin's claim for loss of earning capacity in the future. In support of this assertion, counsel relies upon the Penrod Rule established in this federal circuit by the case of Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir.1975), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975). This cited case clearly bans the admission of evidence of inflationary conditions in Jones Act and F.E.L.A. based damage suits. However, the recent case of Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982), expressly overrules this part of the Penrod case. The court in Culver held:

"... that Penrod's prohibition of any consideration of inflationary factors is unfair to plaintiffs and is therefore overruled ... plaintiffs should be permitted to establish by factual economic and labor data, and expert testimony, that their income would probably continue to increase in response to inflation in future years if they continued to work. Likewise, using economic and labor data and expert testimony, the defendant should be permitted to rebut such evidence." Culver, supra, 688 F.2d at 305.

In view of this recent case, it is evident that the admission of inflation evidence was not error.

K.C. So. Ry. next contends that the trial court erred in allowing the admission of testimony from its witness upon cross-examination regarding his pay scale at K.C. So. Ry. from 1942 until the time of this trial. This point of error should be disposed of under the same reasoning set forth on the rejection of the preceding point of error. The wage scale of a co-worker is evidence which is likely to show the relative increase in wages as compared to the rate of inflation. The complaint of remittances is not a valid complaint since any competent evidence, not privileged, is admissible if it logically tends to prove or disprove a material fact in issue. Here, the fact in issue is Chaffin's future wage rate. When evidence is offered which tends to prove a fact issue it is admissible and its probative effect becomes a question for the jury to pass upon. Meredith v. Eddy, 616 S.W.2d 235 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). The second point of error is therefore denied.

Chaffin received a general discharge from the Navy in 1972 because he had been absent without leave from his assignment. On his cross-examination, counsel for K.C So. Ry. approached the bench and requested a ruling from the court relative to the questioning of Chaffin concerning his discharge. It was then argued that such questioning was relevant to show the reason for such discharge and that such testimony would be probative of his reliability as an employee. Chaffin's counsel then argued that the discharge was too remote to be relevant to any issue in the case. The trial court sustained the position of Chaffin's counsel and excluded the testimony.

The record shows that the general discharge occurred almost ten years prior to this trial and that Chaffin had been employed by K.C. So. Ry. for over five years. No evidence was presented as to Chaffin's failure to properly and timely perform his duties of employment to K.C. So. Ry. If the general discharge and the reason therefore should have been admitted for evidence, it appears that such error was harmless.

In point of error number four, K.C. So. Ry. states that the trial court erred and abused its discretion in allowing Chaffin's counsel, over objection, to testify to the jury as to circumstances of a lawsuit tried sixteen years before.

The case of Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex.1979), cited and relied upon by K.C. So. Ry., held that in the case of improper jury argument the complainant has the burden to prove (1) an error (2) that was not invited or provoked (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge, and (5) that the argument by its nature, degree, and extent constituted reversible, harmful error.

That portion of the jury argument complained of has been reviewed in light of the above authority and no reversible error has been found. Too, if any error existed, it was cured by the trial court's instruction, and its observance, not to testify as to the facts in the prior lawsuit.

K.C. So. Ry.'s next point of error is based upon the trial court's refusal to grant a mistrial because of jury misconduct or misconduct of another person that affected a juror.

During a noon break, Billy Pope, the father-in-law of Chaffin, had a conversation with one of the jurors, Mr. Hamilton, who later was made foreman of the jury. According to Mr. Pope, the conversation concerned their places of residence and the fact that he raised some cows and that "the price of them was cheap and that you couldn't make any money on them." Mr. Gardner, Claims Agent for K.C. So. Ry., commented that he heard Mr. Hamilton say "The price is always going up, too." Mr. Pope testified that during the trial he sat with his daughter, Mrs. Chaffin, along with his wife and grandchildren. The trial judge overruled the motion for a mistrial and stated that he did not find anything wrong with the conversation. He admonished Mr. Pope to not associate with any of the jurors in the future.

A movant for a new trial based on jury misconduct must establish the following: (1) that misconduct occurred; (2) that it was material misconduct; and (3) that based on the record as a whole the misconduct probably resulted in harm to the movant. The question of whether an act of jury misconduct occurred is a question of fact to be determined by the trial judge. Tex.R.Civ.P. 327; Flores v. Dosher, 622 S.W.2d 573 (Tex.1981). The trial court has...