Occidental Life Ins. Co. of Cal. v. Duncan

• Decision Date: 18 May 1966
• Docket Number: No. 14470,14470
• Citation: 404 S.W.2d 52
• Parties: OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. Robert L. DUNCAN, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 52

404 S.W.2d 52

OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. Robert L. DUNCAN, Appellee.

No. 14470.

Court of Civil Appeals of Texas.

San Antonio.

May 18, 1966.

Rehearing Denied June 15, 1966.

Clemens, Knight, Weiss & Spencer, Theo F. Weiss, F. N. Welmaker, San Antonio, for appellant.

Groce, Hebdon, Fahey & Smith, Charles R. Shaddox, San Antonio, for appellee.

MURRAY, Chief Justice.

Appellee brought this suit against appellant for total disability benefits of four life insurance policies. The jury found that the appellee was totally disabled continuously since September, 1963, to the date of trial, July, 1965, and judgment was entered against appellant for combined benefits of $200.00 per month, waiver of premiums, penalty, and attorneys' fees, from which judgment Occidental Life Insurance Company of California has prosecuted this appeal.

Appellant's third point is to the effect that the trial court erred in overruling appellant's motion for new trial based on the misconduct of appellee in asking a juror for aspirins during the trial. We sustain this point, which requires that we reverse the judgment.

The record shows that during the trial and during a recess, a juror, Mrs. Elvira B. McDowell, was sitting on a bench five feet outside the door of the courtroom, directly across the hall from the water fountain, when appellee asked her if she had any aspirin. She took two aspirins from her purse and gave them to him, and he walked across the hall to the water fountain and took them. Appellee admitted that he heard the trial judge caution the jurors about not having any conversation with the parties, but stated he thought the prohibition pertained to discussion of the case. By asking for the aspirin, appellee was conveying to the juror that he was in pain and needed the aspirin to relieve his pain.

Just how much pain was suffered by appellee as a result of his injuries and whether he needed to take medicine for such pain was a question in the case and one to be considered by the jury. Under all the circumstances, this was misconduct on the part of appellee requiring a reversal of the judgment.

The record shows that after appellee had testified that he had asked juror Mrs. McDowell if she had any aspirin, and she had given him two, and that he had taken them in her presence, the following happened:

'THE COURT: Didn't you hear me carefully caution the jurors at the beginning of the trial not to even engage in casual conversation--

A No, I didn't--

THE COURT:--with any of the parties to the suit?

A I didn't understand that, sir.

THE COURT: You didn't hear that?

A I didn't understand that, sir.

THE COURT: Well, I said it very plainly.

A I'm sorry I misunderstood you, your Honor.

THE COURT: Your conduct is reprehensible.

A Well, sir, I certainly apologize if there has been any--I've had no experience in this. But it was my honest interpretation, your Honor, that I couldn't discuss this case or couldn't be--

THE COURT: I didn't say anything about discussing the case. I did say that, too, but I also cautioned the jurors in your presence not to engage in conversation, not even casual conversation in the courtroom, in the hall or elevator or anywhere.

A I'm sorry I misunderstood and broke any rules.

MR. WEISS: Now, you know, Mr. Duncan, that during the course of the trial several of the doctors testified that you did not take any--that you had told them you didn't take any medication; you remember that, don't you? Just answer the question.

A Well, I don't think I've ever said I didn't take any medication in this trial sir.

Q But you heard the doctors testify that you told them that you did say that?

MR. HEBDON: Well, the record will stand for itself on that. The record is there, your Honor.

A I do not take any narcotic. That is what I call medication.

(Witness Excused)'

The evidence further shows that the jury on the first vote stood eleven to one for a 'yes' answer to the issue submitted which would have been favorable to appellee. Then, after some discussion in which Mrs. McDowell argued in favor of a 'yes' answer, another vote was taken and it resulted in twelve for a 'yes' answer.

In view of all the circumstances and facts herein, there is and should be presumed injury, and the verdict should not be permitted to stand. Rules 327, 434 and 503, Texas Rules of Civil Procedure, admonish that in jury misconduct cases a new trial should not be granted unless it reasonably appears from the evidence, both on the hearing of the motion and the trial of the case, and from the record as a whole, that injury probably resulted to the complaining party. Under the entire record we conclude there was probable injury to appellant.

In Texas Employers' Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, the Supreme Court had this to say:

'* * * Rule 327 does not preclude the drawing of logical inferences of prejudice and unfairness from the overt act itself for an action or occurrence may be so highly prejudicial and inimical to fairness of trial that the burden of going forward with proof of harm is met, prima facie at least, by simply showing the improper act and nothing more. Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115; Texas Employers' Ins. Ass'n. v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Calvert, 'The Development of the Doctrine of Harmless Error in Texas' 31 Texas Law Review 1.'

In view of the fact there will have to be a retrial of this cause, perhaps the less we discuss the evidence the better, we will, however, give a general statement of the facts.

Appellee was engaged in the selling of labels as an independent contractor for Louis Roesch Company on a commission basis. Louis Roesch Company manufactures labels and appellee sells them, generally to canners. He has been in the label selling business for some twenty years. He was in an airplane accident on October 25, 1957, and was rather severely injured, Appellant paid him for total disability from the time of his accident until September, 1963, when it stopped payment. This suit by appellee followed.

Appellee was injured in his back, right knee and right foot. He was in the hospital for five moths and thereafter confined to his home for some time. He still has pain in his back but has learned to live with it, his right knee is somewhat recovered. The problem he has now is with his right foot. The joints in the metatarsal section are fused, the pressure causes the joints in his foot to separate, and he wears a brace with a steel plate under his foot to relieve some of the pressure. Motion in that area of his goot...