Roy Jones Lumber Co. v. Murphy, 2422-7912.

Decision Date17 June 1942
Docket NumberNo. 2422-7912.,2422-7912.
Citation163 S.W.2d 644
CourtTexas Supreme Court

This appeal presents only the question as to whether the trial court erred in refusing to hear evidence on the motion of petitioners for a new trial. The Court of Civil Appeals, at Beaumont, held that no error was committed. 154 S.W.2d 187.

Murphy, suing for damages for personal injuries suffered in an automobile collision, won a jury verdict for $12,750. In an amended motion for a new trial, seasonably filed, petitioners alleged jury misconduct in that in their deliberations the jury discussed the fact that defendants would not have to pay the damages awarded because they had insurance coverage; plaintiff's expenses for X-rays, medical attention and hospitalization; his probable outlay for attorney's fees; and the financial straits of plaintiff's father. And it was further alleged that the amount awarded was fixed by a quotient verdict and at such a sum as the jury thought petitioners would pay without "kicking it around in the higher courts."

Murphy specially excepted to the allegations of misconduct because (1) the motion was not properly sworn to; (2) it was not supported by affidavits clearly setting out the facts alleged to constitute misconduct. The exception was sustained and all allegations of misconduct were ordered stricken from the motion. Thereupon petitioners asked leave of the court to amend the motion for a new trial "by verifying the same with affidavit," which the court refused. The bill of exception shows that petitioners' counsel then said, "and at this time we tender testimony of jurors John B. Tomlinson and C. T. Sargent in support of their statements, which original statements are signed and now before the bench; and we ask leave of the Court to let those two jurors take the witness stand and tell whether those statements are true and whether they signed them * * *. (Italics ours.) Now, we ask leave of the Court to put C. T. Sargent on the stand, to show that the statement has been made and that he will swear to it." Then he repeated his request that petitioners have leave "to put each of these witnesses on the stand, so that they will confirm and affirm these statements." Basing his ruling on the ground that the motion was not sufficient to warrant a hearing thereon, the trial judge announced, "I don't care to have the evidence." Whereupon, the motion, which assigned other grounds of alleged error, was overruled.

The statements of the two jurors, Sargent and Tomlinson, tendered under the circumstances above related, state, among other things, that the jury decided that their verdict was not so large but that petitioners' insurance would cover it and that it was fixed at such sum that the insurance company would pay it "without kicking the verdict around in the higher courts."

Whether a motion for a new trial in a civil case alleging jury misconduct must be verified has never been definitely settled in Texas. We find authorities both ways. Thus, in Estep v. Bratton, Tex.Civ.App., 24 S.W.2d 465, the opinion is expressed that such motion does not have to be verified although the court apparently recognized that the expression was not necessary to a decision of the matters before it. Citing eleven cases, 31 Tex.Jur., p. 126, sec. 114, says it seems that a motion for new trial should be verified. In two comparatively recent decisions the Supreme Court has declined to pass on the question. St. Paul Fire & Marine Ins. Co. v. Earnest et al., 116 Tex. 565, 296 S.W. 1088; Allala v. A. N. Tandy & Sons et al., 127 Tex. 148, 92 S.W.2d 227, 228. In the latter case Judge Harvey says, "The Court of Civil Appeals affirmed the judgment of the trial court in this respect [refusal to hear testimony of jurors in support of the motion], for the reason that the averments of the motion were not sworn to. We find it unnecessary to consider whether this ruling of the Court of Civil Appeals be correct or not." In the early case of Sweeney v. Jarvis, 6 Tex. 36, decided in 1851, Justice Wheeler, after quoting the statute of that day requiring that a motion for a new trial "shall be accompanied by a written specification of the grounds on which it is founded; and none other than those specified shall be heard," (Acts 1846, p. 392) had this to say, "The grounds on which a new trial may be asked, are various; as * * * misconduct of the jury * * * and the like. The object of the statute is simply to require the party making the motion, by a written specification, to direct the attention of the Court and the opposite party to that one or more of these several grounds recognized by law, on which he proposes to base his application for a new trial. Nothing more was, it is conceived, contemplated by the statute."

We find nothing in the statute requiring that a motion for new trial be verified. Following the words, "Each motion shall," the requisites are set forth in four subdivisions. That relating to the form of the motion is subdivision 2 of Art. 2232, R.S.1925, and reads, "Be in writing and signed by the party or his attorney." Our new rules merely copy this article. Rule No. 320, Vernon's Texas Rules of Civil Procedure. There are obvious reasons why the statute does not require verification. As to matters occurring during the course of the trial, the trial judge and the opposite side know as much as the complaining party or his attorney; there is usually no dispute as to the fact of what happened, the difference being as to the legal effect to be assigned thereto. As to jury misconduct, obviously anything the party or his attorney might say on that subject would in nearly every conceivable situation be pure hearsay, since neither could have any direct knowledge as to what happened during the jury's deliberations. Making oath to hearsay information under such circumstances would add no force to the things heard. Therefore, we hold that a motion for a new trial on the ground of jury misconduct does not have to be verified. Estep v. Bratton, supra; 46 C.J., p. 315, § 306; 39 Am.Jur., p. 189, sec. 188.

The legislative intent in this regard is made plain, we think, by the fact that while the statute above referred to is silent as to...

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58 cases
  • Sunset Brick & Tile, Inc. v. Miles
    • United States
    • Texas Court of Appeals
    • June 27, 1968
    ...not granting appellants permission to orally examine all of the jurors in an attempt to ferret out misconduct. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942). See Luby v. City of Dallas, 396 S.W.2d 192 (Tex.Civ.App.--Dallas 1965, n.r.e.). Appellants' points 9 through 13......
  • Cortez v. Medical Protective Co. of Ft. Wayne, Ind.
    • United States
    • Texas Court of Appeals
    • November 30, 1977
    ...denied Dr. Cortez' motion for new trial and refused to hear the jurors' testimony. The Texas Supreme Court in Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942), established rules to determine when a trial court must hear testimony of jurors during a hearing on a motion for......
  • Tony's Tortilla Factory, Inc. v. First Bank
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    • Texas Court of Appeals
    • March 25, 1993
    ...that is supported by sufficient affidavits alleging jury misconduct, the trial court must conduct a hearing. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, 646 (1942); TEX.R.CIV.P. 327(a); see Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 850 (Tex.App.--Houston [1st Dist.] 19......
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    • August 8, 1980 hear testimony of misconduct was clearly a matter involving the exercise of sound judicial discretion. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942); Cortez v. Medical Protective Co. of Ft. Wayne, 560 S.W.2d 132, 138 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. ......
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