Naranjo v. Cull

• Decision Date: 22 June 1978
• Docket Number: No. 1261,1261
• Parties: Victor L. NARANJO, Appellant, v. James H. CULL, Appellee.
• Court: Texas Court of Appeals

Page 529

569 S.W.2d 529

Victor L. NARANJO, Appellant, v. James H. CULL, Appellee.

No. 1261.

Court of Civil Appeals of Texas, Corpus Christi.

June 22, 1978.

Rehearing Denied Aug. 29, 1978.

William H. Berry, Jr., Corpus Christi, for appellant.

Jack K. Dahlberg, Jr., Law Offices of Guy H. Allison, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

This is a jury misconduct case. Victor L. Naranjo sued James H. Cull for damages resulting from an automobile accident. Trial was to the jury. The jury awarded $2,000.00 damages to Naranjo, which he claims is grossly inadequate and is the result of a juror's misconduct; i. e., that a retired nurse on the jury panel interpreted the type and strength of certain prescriptions listed on Naranjo's medical records which were introduced into evidence without explanation. The court overruled Naranjo's motion for new trial based on jury misconduct, and he brings this appeal. We affirm.

This suit arises out of a rear-end collision between automobiles of appellant and appellee on September 1, 1973. The evidence shows that Naranjo was stopped at a traffic light when Cull struck the left rear corner of Naranjo's car. Naranjo claimed damage to his car, injuries to his neck and back, and an impairment to his learning ability which forced him to drop out of school.

Insofar as the damage to Naranjo's car was concerned, a police officer who investigated the accident testified that Naranjo's car sustained minimum damage; i. e., damage approximating $150.00. Naranjo, who had not had the car damage estimated up to the time of trial in March of 1977 and who was not experienced as an auto body mechanic, estimated the damage at $1,000.

As to his physical condition, Naranjo testified that prior to the accident he had served in Vietnam where he was severely wounded in the head, left shoulder, left elbow, left hip, and left knee. As a consequence of these injuries, Naranjo was discharged in 1969 as being 100% Disabled and at the time of trial was classified as 80% Disabled. He stated, though, that he had not suffered any neck or back injuries in Vietnam. Following the accident, Naranjo consulted several physicians at the Corpus Christi Naval Air Station complaining of headaches, neck and back pain, and numbness in his left arm. Between September 1973 and July 1975 he visited these physicians 25 times for traction and various medications not explained in the record. From July 1975 to July 1976 he visited these doctors three times and from July 1976 to the time of trial, which began March 21, 1977, he went only twice. In fact, at trial, he stated that he had stopped physical therapy "a while back." Naranjo contended that at first the medications were insufficient to eliminate his nagging neck and back pain, but that as time went on the pain had diminished and the medications gave relief. The medical bill at the Naval Air Station totaled $687.00 for these visits and medications.

In addition to consulting the physicians at the Naval Air Station, Naranjo saw Dr. Marco T. Eugenio, a neurosurgeon, who examined him. Dr. Eugenio testified that he examined Naranjo on December 14, 1973, two and one-half months after the accident, and found pulled and stretched muscles and ligaments in Naranjo's neck and spinal column. The doctor further testified that Naranjo had not complained of headaches at the time of the examination. He also stated that Naranjo's injury was not very serious, and it could be expected to heal naturally.

About his having to leave college, Naranjo testified that his Vietnam mishap had impaired his ability to remember. This memory problem had forced him to drop out of college once before and he had just reentered a few months prior to the accident. He claimed that the auto accident compounded his memory problem, and his frequent visits to the doctor caused him to miss too many classes to continue attending school. Naranjo's testimony was uncertain, though, as to whether or not he had dropped out of school prior to the accident. He claimed that he lost $200.00 per month in G.I. benefits from having to drop out of school. There was no evidence that Naranjo lost any salary or earnings because of his pain or doctor visits.

Appellant brings forward two points of error. The first point alleges the trial court abused its discretion in not granting the motion for new trial based upon jury misconduct. The second point alleges the jury's answer to the damage issue was against the great weight and preponderance of the evidence.

In considering appellant's first point we will be guided by some of the rules which we set out in Baucum v. Statewide Hot Shot, 550 S.W.2d 156, 159 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.) as follows:

"It is well settled law under rule 327, T.R.C.P., that the party asserting misconduct must prove misconduct; that it was material; and that it was calculated to and probably did result in harm. . . . In applying this test, it is necessary for us to consider the entire record. . . . including evidence presented in the trial on the merits as well as that in the motion for new trial hearing. . . . Further, in determining if this burden has been met we are limited to considering only the overt acts of the jury and we must disregard testimony as to their mental processes. . . ."

No findings of fact or conclusions of law were filed concerning the hearing on motion for new trial, so we must presume that the trial judge found that no jury misconduct occurred, or found that it was not material, or found that it probably did not cause harm. Tees v. Tees, 546 S.W.2d 912, 915 (Tex.Civ.App. Houston (1st Dist.) 1977, no writ), see Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.Sup.1969). The implied finding of no overt misconduct is not binding on the reviewing court, though, when all of the uncontroverted evidence shows that misconduct occurred. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961); Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943).

In the instant case, four jurors testified. Though their statements varied slightly, they generally agreed to the following. The other members of the jury requested that Mrs. Janet Corner, a juror who was a retired nurse, read to the jury Mr. Naranjo's medical records from the Naval Air Station. Mrs. Corner then read aloud each listed drug and explained the type and strength of each one she recognized. Two or three times she mentioned that a certain drug was no stronger than aspirin. She also stated that some of the drugs were stronger than aspirin, and that she did not know what several of the drugs and prescriptions listed were. She never gave her own opinion as to the seriousness of Naranjo's injuries as might be indicated from the prescriptions. Each of the testifying jurors stated whether or not Nurse Corner's comments affected his or her decision on damages, but we need not consider these statements as they constitute mental impressions. Cortez v. Medical Protective Co. of Ft. Wayne, 560 S.W.2d 132 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.); Baucum v. Statewide Hot Shot, supra. See Pope, The Mental Operations of Jurors, 40 Texas L.Rev. 849, 860-62 (1962).

We find that there was evidence that overt misconduct occurred because evidence not introduced at trial was brought before the jury. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483 (1943), 156 A.L.R. 1033 (1945), 41 Tex.Jur.2d New Trial § 42 (1963). Thus, the primary issue becomes...