Myers v. Thomas

• Decision Date: 20 July 1944
• Docket Number: No. 2613.,2613.
• Citation: 182 S.W.2d 266
• Parties: MYERS et al. v. THOMAS et al.
• Court: Texas Court of Appeals

182 S.W.2d 266

MYERS et al. v. THOMAS et al.

No. 2613.

Court of Civil Appeals of Texas. Waco.

July 20, 1944.

Rehearing Denied September 21, 1944.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Action by Ralph C. Myers against J. E. Thomas and others for personal injuries resulting from negligent operation of a truck, wherein the Texas State Highway Department intervened asserting a right of subrogation. From an adverse judgment, plaintiff and intervener appeal.

Judgment affirmed.

Todd, Crowley & Gambill, of Fort Worth, and Gean B. Turner, of Cleburne, for appellant Ralph C. Myers.

Grover Sellers, Atty. Gen., and Geo. W. Barcus and Wm. J. R. King, Asst. Attys. Gen., for appellant State Highway Department.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, and R. A. Kilpatrick, of Cleburne, for appellees.

HALE, Justice.

Ralph Myers sued Thomas & Ratliff and R. L. Cain for damages on account of personal injuries. He alleged that defendant Cain was an employee of Thomas & Ratliff and that his injuries were proximately caused by the negligence of Cain in driving a truck at an excessive rate of speed, in failing to keep a proper lookout and in failing to bring the truck to a stop; that one D. W. Clark was also an employee of Thomas & Ratliff, charged with the duty of spotting the gravel truck driven by Cain at a point where its load was to be dumped, and that Clark was negligent in failing to signal Cain with a lantern to stop and in failing to keep a proper lookout; and that J. S. McAdams, an employee of Thomas & Ratliff, employed Cain as a gravel hauler at a time when Cain was tired and sleepy and that McAdams was negligent in directing Cain to work knowing that Cain was tired and sleepy. The Texas State Highway Department intervened in the suit asserting its right of subrogation in the subject matter thereof to the extent of $7,930.73 by reason of the expenditure of that amount in disposing of its potential liability to plaintiff under the provisions of the Workmen's Compensation Act. Thomas & Ratliff answered with a general denial and certain affirmative defenses. Defendant Cain did not file any answer and did not appear at the trial either in person or by attorney. The case was submitted to a jury on special issues and upon their findings the court rendered judgment that plaintiff and intervenor take nothing and they have appealed.

Plaintiff says the judgment should be reversed because of (1) misconduct of the jury, (2) improper argument of counsel, and (3) the error of the court in permitting Thomas & Ratliff to introduce in evidence an unsworn statement made by defendant Cain. Intervenor says the judgment should be reversed because the court erred in overruling its motion timely made in advance of the trial to exclude from the jury all information relative to the fact that it had settled with plaintiff under the Workmen's Compensation Act, Vernon's Ann.Civ.St. Art. 8306 et seq., and in refusing to instruct the jury after the evidence was concluded not to discuss or take into consideration any information with respect thereto. Thomas & Ratliff say the judgment should be affirmed because no procedural error is disclosed by the record, but if so the same is harmless insofar as they are concerned because, among other reasons, they were entitled as a matter of law to a peremptory instruction.

Thomas & Ratliff were engaged as general contractors under the supervision of intervenor in the construction of a public highway in Johnson County. In the performance of this contract they employed the services of various persons to haul gravel for the project, agreeing to pay for such services at the rate of $1 per truckload. Plaintiff was an employee of intervenor and on the night of January 16, 1941 while acting in the course of his employment on the job as such employee he sustained an accidental injury as the result of being struck by a gravel truck belonging to and being operated by defendant Cain. Thereafter, in pursuance of Art. 6674s of Vernon's Tex.Ann.Civ.Stats., intervenor expended the sum of $4,730.73 in furnishing hospital, medical and doctor's services on behalf of plaintiff and paid to him the sum of $3200 on account of his injuries in accordance with an agreed compromise settlement which was approved by the Industrial Accident Board. The jury found in substance that Cain and Clark were each an employee of Thomas & Ratliff and that each was acting in the course of his employment at the time of the injury but that neither failed to keep a proper lookout on the occasion in question; that Cain was driving the truck at 20 miles per hour and failed to bring the same to a stop but that neither the rate of speed nor the failure to stop constituted negligence; that Clark failed to signal Cain with a lantern to stop but that such failure was not negligence; that Cain was tired and sleepy at the time he was employed by McAdams but McAdams did not direct Cain to work knowing that he was tired and sleepy; that $10,000 would reasonably compensate plaintiff for his injuries and damages; that plaintiff was not guilty of any contributory negligence; that Cain was acting under an emergency at the time of the collision; and that the collision was the result of an unavoidable accident and of a new and independent cause or causes.

The first point in plaintiff's brief presents the contention that the judgment should be reversed because it was shown on the hearing of the motion for new trial that the jury was guilty of material misconduct in that after the jurors had agreed to answer certain issues in a manner favorable to plaintiff they then discussed the legal effect thereof and thereupon changed their answers to such issues.

When a case is submitted on special issues, the jury should not deliberately consider the legal effect their answers may have upon the rights of the parties to the suit. In such a case, it is improper for the jurors or any of them to agree in advance on the legal results they wish to accomplish by their verdict and then attempt to answer the issues in such a way as to carry out the original agreement. Texas Electric Ry. Co. v. Swofford, Tex.Civ.App., 159 S.W.2d 938, and authorities. However, in order to justify or require the granting of a new trial on the ground of material misconduct of a jury the burden rests upon the complaining party to establish the misconduct complained of by a preponderance of the evidence and to show from the record as a whole that such misconduct probably resulted in injury to him. Rule 327, Tex. Rules of Civil Procedure; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. If the evidence is disputed as to whether jury misconduct actually occurred, or if reasonable minds may differ in the conclusions of fact to be drawn from the evidence raising such issue or issues, then in either event the findings of fact by the trial court with respect thereto are binding upon the appellate court unless such findings are palpably wrong. 31 T.J., p. 166, Sec. 154 and authorities; Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729; Edens-Birch Lbr. Co. v. Wood, Tex.Civ. App., 139 S.W.2d 881; Wohlford v. Texas & N. O. R. Co., Tex.Civ.App., 128 S.W.2d 449, er. dis.; S. H. Kress & Co. v. Hall, Tex.Civ.App., 154 S.W.2d 278, er. ref.

In submitting this case on special issues, the court properly gave to the jury as a part of his admonitory charge the following instruction: "Do not decide who you think should win, and then try to answer the questions accordingly. If you do that, your verdict will be worthless, and all of our time will have been wasted. Simply answer the questions as you find the facts from the evidence, without concerning yourselves about the effect of your answers." Under the court's charge the jury was required to answer only 29 of the 47 independent and corollary issues submitted. Of the 29 issues thus answered 18 were favorable to the contentions of plaintiff and 11 were favorable to the contentions of Thomas & Ratliff. Of the 18 answers favorable to plaintiff 12 related to grounds of recovery and 6 related to grounds of defense.

Upon the hearing of the motion for new trial plaintiff tendered three of the jurors and Thomas & Ratliff tendered eight of the jurors as witnesses. From the testimony of these witnesses it appears that the jury began their deliberations by taking up the issues in the court's charge and agreeing on the answer to each issue in its numerical order and continued in that manner until they reached the issues relating to a proper lookout. They then agreed that Cain and Clark each failed to keep a proper lookout but in considering the corollary issues they could not determine at that time whether such conduct constituted negligence or a proximate cause as defined by the court. After answering the remaining issues in the charge, the jury returned to a further consideration of the issues relating to a proper lookout on the part of Cain and Clark. Some of the jurors testified that a discussion was then had to the effect that if they should find Cain and Clark failed to keep a proper lookout each would be responsible to plaintiff and that such findings might result in another suit being brought against Clark, while other jurors testified that no such discussion was had or if so they did not hear it. Some of the jurors testified in substance that after they had given more careful study to the court's charge in connection with their answers to the issues relating to contributory negligence, emergency, unavoidable accident and independent cause, they concluded that their prior answers to the issues of proper lookout should be changed in order to make such answers consistent with their answers to the subsequent issues. All of the jurors testified in effect that their answers to the issues of proper lookout were changed...