Lewis v. Yaggi

• Decision Date: 14 June 1979
• Docket Number: No. 1216,1216
• Parties: Robert L. LEWIS, Individually and d/b/a Robert L. Lewis Delivery Service, et al., Appellants, v. Ernest E. YAGGI et al., Appellees.
• Court: Texas Court of Appeals

Page 487

584 S.W.2d 487

Robert L. LEWIS, Individually and d/b/a Robert L. Lewis

Delivery Service, et al., Appellants, v. Ernest E. YAGGI et al., Appellees.

No. 1216.

Court of Civil Appeals of Texas, Tyler.

June 14, 1979.

Rehearing Denied July 12, 1979.

Mike Hatchell, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Jack W. Flock, Tyler, W. B. Fields, Fields, Fields & Hardee, Athens, Luther C. Johnson, (Gdn. ad Litem) Palestine, for appellants.

Charles B. Guy, Dallas, Don A. Weitinger, Houston, for appellees.

McKAY, Justice.

This is an appeal in a personal injury suit on the grounds of jury misconduct and a conflict in the jury's answers to special issues.

In the early morning of July 24, 1974, on a highway about four miles south of Palestine, a van collided with a Continental Trailways bus. Edwin M. Massengale, the driver of the van, was employed by the Robert L. Lewis Delivery Service making bulk delivery of newspapers. Ernest E. Yaggi was the bus driver, on a Houston-to-Texarkana route. Massengale was killed and Yaggi injured (primarily a broken knee) in the accident.

Yaggi and his wife brought suit against the A. H. Belo Corporation; The Dallas Morning News (an unincorporated subsidiary of Belo); Massengale's estate; Pauline Massengale (decedent's widow), individually and as community survivor, representative of the estate, and heir; and Julie Massengale (daughter of decedent), individually and as heir. Apparently Robert L. Lewis, individually and d/b/a Robert L. Lewis Delivery Service and Robert L. Lewis Transportation Company, was later added as a defendant. Yaggi alleged various acts of negligence by Massengale and damages totaling $40,000.

The Massengale defendants filed a cross-action against Yaggi and added Continental as a third-party defendant, alleging various acts of negligence by Yaggi and claiming damages totaling $404,558.75. Continental filed its cross-action against all of the defendants, alleging damages to its bus, including loss of use, in the amount of $24,786.35. All of the defendants' answers alleged contributory negligence on the part of Yaggi.

All of the defendants entered pleas of privilege but only those of Belo and The Dallas Morning News were sustained. The cause as to them was severed and transferred to Dallas County.

Hartford Insurance Company intervened to recoup workmen's compensation benefits ($8,748.27) paid to Yaggi. Texas Employers Insurance Association intervened to recoup benefits ($9,131.00) paid for Massengale's death.

Following a stipulation by the defendants that any negligence on the part of Massengale was to be imputed to the Robert L. Lewis Delivery Service, Yaggi and Continental took a nonsuit in their actions against the Massengale defendants.

Trial was had before a jury which found Massengale negligent in failing to keep a proper lookout, failing to apply his brakes, and changing lanes when it was unsafe to do so. With regard to Yaggi, the jury found: he did not fail to keep a proper lookout; he did not fail to apply his brakes; he did fail to avoid the collision but this was not negligence; he did drive in excess of 55 mph but this was not negligence; he did not drive in the left lane; he did drive after consuming alcoholic beverages (apparently he had had two beers) but this was not negligence. It was further found that the percentage of negligence attributable to Massengale was 70% And to Yaggi, 30%. Yaggi's damages were found to be $12,175 and the Massengales', $76,100.

The trial court entered judgment for Continental and Yaggi, jointly and severally, against Lewis for $12,175.00; for Continental against Lewis for $15,211.35 (amount stipulated as damages to the bus); that the Massengales and Texas Employers take nothing; and for Julie Massengale's guardian ad litem against Lewis for $1,500 in attorney's fees. An amended motion for new trial, which asserted jury misconduct as well as attacking the findings of the jury, was overruled.

The Massengales, Lewis, and Texas Employers appeal, bringing five points of error. The first four concern alleged jury misconduct. The jury foreman allegedly was told, by another venireman, during voir dire, that Mrs. Massengale had refused a settlement offer of $70,000. The foreman then allegedly failed to reveal this when asked if he knew anything about the case, and informed at least one other juror of this during deliberations. The information allegedly was ultimately received by several jurors. Further, statements were said to have been made in the jury room that Mrs. Massengale would probably remarry and would not need the money she had prayed for, and that any recovery she might receive would be divided between her attorneys. Point one complains of error by the trial court in overruling the motion for new trial because the jury was probably caused to return its verdict due to the aforementioned alleged acts of misconduct. Point two asserts error in overruling the motion because the foreman failed to reveal that he had received information about the case before being sworn in as a juror. The third point states that any implied finding that the misconduct did not occur at a time when it could be harmful is against the great weight and preponderance of the evidence. Point four complains of error in failing to sustain the motion because the cumulative effect of the alleged misconduct probably caused the rendition of an improper verdict. Appellees reply that it was disputed as to who among the jurors heard the settlement offer statement, when it was made, and whether there was any adverse effect on appellants; appellees also claim the statements concerning remarriage and attorney's fees had no effect on the deliberations, and that the foreman's receiving information regarding the settlement offer did not affect his decision and did not harm appellants. It is further argued by appellees that it must be presumed, in the absence of express findings, that the trial court found all controverted facts in favor of appellees in overruling the motion for new trial.

It will be helpful at this point to detail the testimony given before the trial court at the hearing on appellant's motion for new trial. Four of the twelve jurors testified. The first to testify was Mrs. Elizabeth Beard, who was called by appellants. She testified that after the jury had gone to the jury room for their deliberations, Olan Campbell was elected foreman; that before any deliberations had commenced the foreman made a statement that Mrs. Massengale had been offered $70,000 and had refused it; that that statement was made before any questions had been answered, and that it was made only one time; and that the statement was made loud enough so that any person with ordinary hearing capabilities could have heard it. Mrs. Beard further testified that shortly thereafter the jury stood ten-to-two in favor of the bus company and that later those two voted with the other ten so that the verdict returned to the trial judge was unanimous. Mrs. Beard's testimony continued to the effect that a lady juror said that the money (apparently referring to any recovery by Mrs. Massengale) would be divided between Luther Johnston and Boone Fields (two of Mrs. Massengale's attorneys), and that the same lady said that Mrs. Massengale would probably marry again and "She wouldn't need the money all that much." On cross-examination, Mrs. Beard reiterated that Campbell's statement concerning the settlement offer had been made before the jury began considering the special issues. She also testified that it was she and one other male juror who voted initially to place the liability on Yaggi and the bus company; that it appeared to her that the ten jurors wanted to put all the blame on Massengale throughout the course of the deliberations and that she and the other man "just decided to go" with the majority.

The second witness called by appellants was Mrs. Melinda Bridges. She testified that the foreman, during the deliberations, "said that she (Mrs. Massengale) had been offered a settlement which that is what we all figured she had been done (sic)"; that she did not recall how much money was offered (after refreshing her memory from her affidavit, she stated that the amount was $70,000). On cross-examination Mrs. Bridges testified that the first thing that was done during the deliberations was the election of the foreman and that the next thing that happened was that the foreman read the charge aloud and that as he came to the questions the jury voted on them; that there had been no discussion prior to the foreman's reading of the charge; that in response to the first question the jurors voted ten to two that Massengale was at fault and that up to that point she didn't believe there had been any discussion about the settlement offer; that she didn't know when the statement concerning the settlement offer had been made, but she stated, "I will say it wasn't at the beginning. I don't feel like it was, it was an innocent statement anyway." She later testified again that she didn't know when the statement was made, but that some of the special issues (she could not recall how many) had been voted on and answered when the statement was made. In response to the question, "After this statement was made, at whatever point it was made, did any change any of those questions that had already been answered? (sic)" she answered, "No." On redirect examination, Mrs. Bridges again testified that Campbell's statement was not made at the beginning of the deliberations, and on recross-examination she testified that no one changed his vote after the statement was made. Then, on redirect examination, she stated that two jurors did change their votes at some time during the day.

Appellees' first witness was Durwood Pearson, who testified that the election of the foreman was the first thing done during the deliberations and that then the jury looked at the pictures again and the...