Robertson v. Humble Oil & Refining Co.

• Decision Date: 29 April 1938
• Docket Number: No. 5206.,5206.
• Parties: ROBERTSON v. HUMBLE OIL & REFINING CO.
• Court: Texas Court of Appeals

116 S.W.2d 820

ROBERTSON v. HUMBLE OIL & REFINING CO.

No. 5206.

Court of Civil Appeals of Texas. Texarkana.

April 29, 1938.

Rehearing Denied May 5, 1938.

Error from District Court, Harrison County; W. H. Strength, Judge.

Suit by L. B. Robertson against the Humble Oil & Refining Company for personal injuries wherein the Employers Liability Assurance Corporation intervened. Judgment

for defendant, and plaintiff brings error.

Affirmed.

Jones & Jones, of Marshall, for plaintiff in error.

K. W. Gilmore, of Houston, Sam B. Hall and Blalock, Blalock, Lohman & Blalock, all of Marshall, for defendant in error.

WILLIAMS, Justice.

Plaintiff in error, L. B. Robertson, plaintiff below, appeals from a judgment denying a recovery wherein he, together with the Employers Liability Assurance Corporation who intervened, sought damages of defendant in error. Humble Oil & Refining Company, defendant below, for personal injuries. The history and character of this litigation is reported in Tex.Civ.App., 69 S.W.2d 537. It is unnecessary to restate a further history of the facts, because the assignments of error advanced by plaintiff in this appeal involve alleged misconduct of the jury. In the present trial plaintiff amended his pleadings, alleging in the alternative that his injuries were due to gas coming from the wells of defendant.

In response to issues submitted, the jury exonerated defendant from all acts of negligence alleged, and found plaintiff guilty of several acts of contributory negligence. To the question as to amount of damages sustained, the jury answered "None."

In an amended motion for new trial plaintiff alleged: "That the jury while discussing the issues with respect to liability of the defendant and the alleged contributory negligence of the plaintiff, they were divided, some desiring to answer said issues in favor of plaintiff and some in favor of defendant, and that during the deliberations and before all of said issues had been answered or before any of them had been answered, some one or more jurors stated and discussed, in the presence of other jurors desiring to answer said issues in favor of plaintiff, that the plaintiff should have sued all the surrounding operators, that all of said operators were letting gas loose and that even if some of the gas which caused the fire that resulted in plaintiff's injuries did come from defendant's tanks or property, that all the blame should not be put upon defendant, and for these reasons, they should find in favor of defendant."

The evidence disclosed oil wells being operated by various concerns in the vicinity prior to and at the time of the fire, and the jury learned from the pleadings that this company was the only defendant in the suit. In Allala v. A. N. Tandy & Sons, 127 Tex. 148, 92 S.W.2d 227, in an opinion adopted by the Supreme Court, it is said (page 228): "In the case shown, nothing more than a misinterpretation of testimony appears. Even if such misinterpretation be conceded, proof of the fact that the misinterpretation induced the verdict on the issue of negligence still would depend entirely on the testimony of jurors as to their mental processes. The statute does not contemplate that jurors either individually or collectively, shall be allowed to destroy their verdict in this fashion."

Plaintiff further alleged that "Before the jury had returned a final verdict some one or more of the jurors discussed and considered the effect of their answers; and discussed and considered the effect of their answers with respect to liability of defendant in connection with the answer of the jury with respect to the damages sustained by plaintiff, and did openly discuss the effect of the answers to the special issues, and did state in the presence of other jurors that the effect of their answers with regard to the question of liability was to give plaintiff nothing, and there was no use of writing in any amount with regard to the damages, if any, sustained by plaintiff. That the jury considered the effect of their answers to special issues on liability, and purposely arrived at the verdict entered in an effort to prevent the plaintiff from recovering any damages, and further, intensified said effort by discussing the fact that their answers to said issues on liability would give plaintiff nothing, and, therefore, they should answer nothing in response to the issue on damages, although the jury agreed plaintiff had been damaged."

The allegations in this paragraph summed up amounts to the charge that jurors, knowing the effect of their answers to the questions on liability, answered that plaintiff had not been damaged in that they knew the answers as already made would not permit him to recover. In this cause the jury found plaintiff guilty of contributory negligence in having an open fire at the time and place, in building a fire immediately preceding the gas fire, in lighting and smoking a cigarette at the time and prior thereto. They had exonerated defendant on all acts of negligence alleged. These findings would have prevented a recovery for plaintiff. It became immaterial if the jury failed to answer the issue on amount of damages or answered same in some amount.

The foregoing allegations as to alleged jury misconduct was verified by an affidavit made by one of the attorneys for plaintiff, reading: "I, * * * solemnly swear that I have talked with some of the jurors, and that the facts set forth in the foregoing motion in respect to jury misconduct were elicited from said conversation, and that upon information and belief the facts set forth in said motion with respect to jury misconduct are true and correct."

This affidavit was subscribed and sworn to before a notary public. It is observed that this affidavit attached to said motion is based upon information and belief for it so states. It does not disclose what facts alleged are based upon information, and what part is based upon affiant's belief, nor what part is conclusions that affiant elicited in his conversations with some of the jurors. Defendant by special demurrer urged that the allegations as to alleged misconduct of the jury be stricken, in that the affidavit constituted no...