McAllen Coca Cola Bottling Co., Inc. v. Alvarez

• Decision Date: 12 April 1979
• Docket Number: No. 1402,1402
• Citation: 581 S.W.2d 201
• Parties: McALLEN COCA COLA BOTTLING COMPANY, INC., Appellant, v. Maria Natividad ALVAREZ, Appellee.
• Court: Texas Court of Appeals

Page 201

581 S.W.2d 201

McALLEN COCA COLA BOTTLING COMPANY, INC., Appellant, v. Maria Natividad ALVAREZ, Appellee.

No. 1402.

Court of Civil Appeals of Texas, Corpus Christi.

April 12, 1979.

On Remittitur April 26, 1979.

Mike Mills, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellant.

James S. Bates, Bates & Hendrix, Edinburg, for appellee.

OPINION

NYE, Chief Justice.

This is a suit for damages brought by Maria Alvarez against the McAllen Coca Cola Bottling Company, allegedly as a result of the plaintiff drinking a portion of the contents of a Coca Cola bottle in which there was wedged a hairpin. The case was tried to a jury, and based on the verdict, the trial court entered judgment for the plaintiff for pain and mental anguish in the sum of $30,000.00 and for medical expenses in the amount of $12.00. Defendant McAllen Coca Cola Bottling Company has perfected its appeal to this Court.

The evidence showed that the plaintiff was a teacher's aide, and while she was at the Zavala Elementary School in McAllen, Texas, eating her lunch, she drank a Coca Cola which contained the hairpin wedged in the bottle. Plaintiff became immediately ill and regurgitated, but thereafter remained at work during the rest of the day. That night she became violently ill and had to be taken to the emergency room of the McAllen General Hospital where she was treated by a physician. She was released from the hospital the same night. She lost the next two days of work, complaining of diarrhea, nausea, cramps and headaches. Other witnesses testified that plaintiff Alvarez had a violent reaction every time the word "Coke" was mentioned. Mrs. Alvarez testified that the family cannot have Coca Cola in the house because of the violent effect that it has on her every time the word "Coke" is mentioned. She testified finally that she still receives a reaction, four years after the incident, every time there is a mention of the word "Coke" to her.

The appellant complains primarily of the excessiveness of the jury's award. Its first point of error, however, is directed toward jury misconduct. The trial judge, on the filing of the amended motion for new trial duly supported by affidavits of several jurors, conducted a hearing on the question of jury misconduct. Four of the twelve jurors testified at the motion for new trial hearing.

The first juror, Jesse Carrillo, Jr., testified that the amount of attorneys fees which plaintiff would be charged by her attorney was discussed in the jury room before the entire jury. Juror Carrillo testified that there was a discussion to the effect that 33% Or 45% Of any award made to the plaintiff would go to her attorney. Carrillo also testified that one of the jurors, who was an orderly or a nurse at a hospital related to the jurors that it could not have been the lunch (potted meat) that plaintiff had eaten during her lunch that caused her illness, because it takes four hours to digest food. Carrillo also stated that there was a discussion as to the size of the defendant corporation. He stated that one juror said: ". . . since it was such a big corporation $30,000.00 or $60,000.00 wouldn't affect them at all." Carrillo was the one juror who did not sign the verdict.

Juror Felipe Cortez also testified that attorney fees were discussed but he could not remember the percentage or fractions mentioned. He testified that the discussion of attorney fees was not made before the entire jury, but just before a few jurors, "between a couple of us."

Juror Omar Garcia testified that attorney fees were discussed by the jurors to the effect that, "We just discussed the amount that it was too much money split in half . . .", and, question: ". . . that was discussed in front of the entire jury?" Answer: "Right."

Juror Roel Garza testified that plaintiff's attorney would receive around $15,000.00 or $20,000.00 and that this was discussed in front of the entire jury.

The effect of jury misconduct must be determined in light of Rule 327, T.R.C.P. This rule directs the trial court to inquire as to whether or not, as a matter of fact, jury misconduct occurred. If misconduct is proved from the record as a whole, it then must be determined before a reversal is justified, if such misconduct was material and that probable injury resulted to the complaining party. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.Sup. 1969). It has long been the rule of law that jurors must not be permitted to become secret witnesses in the jury room by testifying and attempting to influence their peers with evidence that did not come from the mouths of sworn witnesses during the course of the trial. Central Power & Light Company v. Freeman, 431 S.W.2d 897 (Tex.Civ.App. Corpus Christi 1968, writ ref'd n. r. e.). A discussion of attorney fees and the amount that a plaintiff might be required to pay out of what he recovers is material misconduct, and such, if proved, is calculated to prejudice the rights of a defendant. White Cabs, et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947).

To grant or deny a new trial on the basis of misconduct of a juror is to a large extent within the sound discretion of the trial court. Its decision will not be disturbed unless it is erroneous. The question of whether or not misconduct occurred is one of fact to be determined by the trial court from the evidence at the motion for new trial as any other question of fact is to be determined. This rule will ordinarily be accepted as final when supported by the evidence or when the evidence thereon is conflicting. Where the trial judge overrules the motion for new trial on the ground of...