Maryland Casualty Co. v. Hearks

• Decision Date: 31 October 1945
• Docket Number: No. A-627.,A-627.
• Citation: 190 S.W.2d 62
• Parties: MARYLAND CASUALTY CO. v. HEARKS.
• Court: Texas Supreme Court

190 S.W.2d 62

MARYLAND CASUALTY CO. v. HEARKS.

No. A-627.

Supreme Court of Texas.

October 31, 1945.

Rehearing Denied November 28, 1945.

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

Suit by Richard Hearks under the Workmen's Compensation Act against Maryland Casualty Company, insurance carrier, to set aside an award of the Industrial Accident Board for loss of vision of right eye. To review a judgment of the Court of Civil Appeals, 188 S.W.2d 262, affirming a judgment of the trial court for plaintiff for compensation for 100 weeks at $20 per week, the defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Smith, Smith & Boyd and A. H. Boyd, all of Beaumont, for petitioner.

D. L. Broadus and D. F. Sanders, both of Beaumont, for respondent.

ALEXANDER, Chief Justice.

This is a workmen's compensation case in which the employee recovered for loss of sight in his right eye. The Court of Civil Appeals affirmed the judgment of the trial court. 188 S.W.2d 262. This Court granted a writ of error on assignments charging misconduct of the jury.

It is contended, in effect, that during the jury's deliberations one of the jurors set himself up as an expert and imparted new and additional evidence to the jury.

There was a conflict in the evidence upon the trial on the merits as to whether the employee was blind in his right eye when he went to work for the employer or whether he lost the sight in that eye as the result of an injury received in the course of his employment. The employee testified that a passing truck caused a loose gravel to strike him in his eye; that he went immediately to the company nurse for first aid treatment; and that a short time thereafter he had to have his eye removed as a result of the injury. Dr. Byrd, the doctor who treated and removed the employee's eye, testified at the trial that in his opinion the condition he found in the employee's eye was caused by a blow rather than disease. Dr. Lyons, a specialist who examined the eye two days after the injury was supposed to have occurred, testified that he found no evidence of a recent injury, but that he found a cataract formation and a chronic inflammation process going on and that the eye was "out." Dr. Hines was the examining physician who examined all employees when they went to work for the employer. He testified, in substance, that the examination which he made of this particular employee consisted of asking him if he could read certain letters on a chart which was several feet away from the employee, and when the employee answered that he could not the doctor wrote "blind" on his report. The doctor did not state that he had looked at the employee's eye. He was unable to state whether the eye was red, inflamed, cloudy, or clear at the time.

On the motion for new trial only two jurors testified on the issue here involved. One of them, when asked whether he discussed his personal experiences while the jury was deliberating, testified as follows:

"Q. Did you discuss on that point your personal experience * * * about whether a man might be able to see or might not be able to see those letters at that distance that Dr. Hines had told about? A. Well, we discussed such a thing with one another —that is the jury, you know. You can't serve without * * *.

"Q. Did you tell about that (having his eyes tested) in the jury room when you were considering your verdict? A. Well, I won't say I did and won't say I didn't.

"Q. Did you give your personal experiences as to what you knew about eyesight and a man being able to see a chart at that distance? A. Well, I got up and said something, but I don't know exactly. I couldn't recall exactly the words."

The other juror, after being asked if the jury discussed the issue as to whether you could tell whether a man was blind by having him look at a chart, such as was used by Dr. Hines, testified as follows:

"A. Well, it was mentioned that you couldn't tell whether or not a man was blind in one eye."

"Q. Was there any discussion as to charts, as to whether a chart or letters on a chart would be determinative of that? A. Yes, we discussed that, about you couldn't tell whether a man could see say six or eight feet from him or twenty feet and so forth and so on.

"Q. Was there any particular discussion as to whether the test shown by Dr. Hines in this case, that chart at the distance he showed him would or not be determinative, whether a man had eyesight or not, do you recall whether such discussion as that was had? A. It could have been, but I don't remember it."

It is a well-recognized rule that a juror who has special knowledge on a particular subject is not permitted to impart to the jury his expert opinion on material matters being considered by the jury in its deliberations. Lincoln v. Stone, Tex.Com. App. 59 S.W.2d 100; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259.

However, we do not think the above rule was violated in this instance. The trial court found as follows:

"1. I find as a fact that the jury did not receive any evidence from the lips of other jurors after the jury retired to deliberate on its verdict.

"2. The evidence does not show that any juror set himself up as...