Swaim v. Teasley

• Decision Date: 30 May 1952
• Docket Number: No. 15351,15351
• Citation: 249 S.W.2d 674
• Parties: SWAIM et ux. v. TEASLEY et al.
• Court: Texas Court of Appeals

Page 674

249 S.W.2d 674

SWAIM et ux. v. TEASLEY et al.

No. 15351.

Court of Civil Appeals of Texas, Fort Worth.

May 30, 1952.

McLean & McLean, Guy T. Buell, Frank Ogilvie and Green & Byron, all of Fort Worth, for appellant.

Bryan, Stone, Agerton & Parker, G. W. Parker, Jr., and Walter E. Jordan, all of Fort Worth, for appellee.

RENFRO, Justice.

The appellants, J. R. Swaim and wife, Angie Swaim, sued appellees, Raymond Teasley and Tom Rosser, in a District Court of Tarrant County for injuries sustained while riding as passengers on a bus operated by appellees. From a judgment denying them any recovery, they have appealed on the sole ground of jury misconduct.

In their amended petition, they pleaded that the rear end of the bus became disengaged from the axle thereof, broke down, or in some manner collapsed, and further that the rear spring and other apparatus and mechanical devices holding up and supporting the drive shaft of the bus broke, causing the drive shaft to fall to the ground, or that other mechanical parts and structures of said bus collapsed, and that appellees were negligent in allowing the bus to be operated in a defective condition. The appellees answered that the spring leaf broke because same suddenly crystallized or because of some latent defect therein; that the bus and springs had been carefully inspected and maintained but the nature of the condition of the spring could not be found by inspection, even in the exercise of a high degree of care.

The first question submitted to the jury inquired if the defendants and their employees, by the exercise of a high degree of care, should or could have discovered the defect in the rear spring of the bus, to which the jury answered 'No'. After the Court rendered judgment for the appellees, a motion for new trial was filed by appellants, claiming jury misconduct in that, 'new testimony was introduced and considered by the jury in that one or more of said jurors related experiences and compared them to the case they were deciding, * * *'

On the hearing on the motion for a new trial, the jurors, Lonnie S. Smith, R. D. Cryer and J. A. Smith, testified as witnesses.

All three testified that on voir dire J. A. Smith made known to the attorneys questioning the panel that he had recently had an accident and stated the nature of same.

Juror Lonnie S. Smith testified that during the deliberations of the jury and after he had voted 'Yes' to Issue No. 1, 'Mr. Smith (J. A.) was asked about his accident which he had had and he told about it, in which he felt it could-he could not help it because his car lost control-went out of control and hit a stump over there similar to the accident that he had-the bus company--.' The witness further testified that by reason of the personal experience related by J. A. Smith, he was influenced to and did change his vote to 'No' on said issue. He admitted that he was cautioned by the foreman and at least one other juror not to consider any personal experience and forget everything except what he had heard from the witness stand.

The witness R. D. Cryer testified that after he had first voted to answer 'Yes' to Issue No. 1, J. A. Smith said, "I had an accident of about the same thing' and he said he was just driving down the street, a country road, and something happened to his car, something broke and he hit a stumpt;' that after said statement was made, he voted 'No' to Issue No. 1; that he was influenced by and did vote 'No' by reason of the personal experiences mentioned in the jury room. He testified that J. A. Smith made mention of his accident only one time, early in the discussion, and followed such statement promptly by the admonition, "But that is something that we don't consider in this case. " Cryer himself called one juror down for 'just bringing up something.'

The juror J. A. Smith, who had served as foreman of the jury in the trial of the case, testified that while the jury was deliberating, someone said, "Smith, you had an accident that was unavoidable. Did you examine your car? ' I said, 'No, I didn't examine my car. I always go out and look at my wheels to see if my tires are up, but that is no part of this case and we will not discuss it,''; that that was as far as the discussion went; that anytime any juror brought up anything not in evidence, he promptly admonished them not to consider it.

The testimony of jurors, Lonnie S. Smith and R. D. Cryer, that they were influenced to vote 'No' because of discussions outside the evidence, has no probative force and should not have been admitted. It is not permissible to allow jurors to either preserve or destroy their verdict by testifying to the mental processes by which they reached the same. Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729.

In order to justify the trial court's granting a new trial on the ground of alleged jury misconduct, (1) such misconduct must be proved; (2) the testimony received, or the communication made, must be material; and (3) it must reasonably appear that probable injury resulted to the complaining party. Rule 327, Texas Rules of Civil Procedure; Crawford v. Detering Co., Tex Sup., 237 S.W.2d 615; Menefee v. Gulf,...