Texas General Indem. Co. v. Watson, 2-82-188-CV
| Decision Date | 21 July 1983 |
| Docket Number | No. 2-82-188-CV,2-82-188-CV |
| Parties | TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Richard N. WATSON, Appellee. |
| Court | Texas Court of Appeals |
H.C. McCracken, Jr., Carrollton, for appellant.
Jerry A. Pusch, Jr., Houston, for appellee.
Before HUGHES, JORDAN and BURDOCK, JJ.
This is an appeal by Texas General Indemnity Company in a worker's compensation case complaining of a ruling of the trial court on its motion for new trial based on alleged acts of jury misconduct.
We reverse and remand.
Appellee Watson was, prior to November 9, 1977, a truck driver for Red Ball Motor Freight, Inc., and on that date, while in the scope and course of his employment, was injured in a truck-automobile accident. The driver of the automobile was killed. Watson sued Texas General claiming total and permanent incapacity. Trial was to a jury, which found plaintiff received an injury on November 9, 1977 which produced total incapacity from November 14, 1977 through October 3, 1978 and permanent partial incapacity beginning October 4, 1978. The jury also found plaintiff's average weekly earning capacity during partial incapacity to be $250.00 per week and found plaintiff's medical expenses to be $5,332.30. Judgment was entered on this verdict for appellee in the amount of $30,799.00.
Texas General timely filed its motion for new trial based on several acts of jury misconduct, discussed later herein, and after a full hearing, the trial court found that "some jury misconduct did occur ...", but that it was not material and did not injure or harm appellant.
The appeal is based on two points of error: (1) that the trial court erred in overruling appellant's motion for new trial because the acts of jury misconduct were material and probably did result in injury to the defendant; and (2) that the jury's finding of $250.00 per week earning capacity during partial incapacity was against the great weight and preponderance of the evidence.
The jury returned a ten to two jury verdict. The verdict was signed by the ten jurors who agreed and was not signed by jurors Poole and Mary Ann Knox, who did not agree with the verdict.
Most of the jury misconduct was alleged by appellant to have been caused by a vocal and persuasive juror, a Mr. Lewis. The most serious act of jury misconduct which occurred in this case was the refusal, upon advice of Mr. Lewis and possibly the foreman Mr. Daniel, to allow Mrs. Poole and Mary Ann Knox to deliberate and participate in the discussion of other jury issues after each of them voted, in answer to different special issues, in a negative manner and contrary to the majority of the jurors.
According to the testimony of three of the jurors, Mrs. Poole, after she voted "no" to issue no. 2, inquiring as to whether Watson suffered any total incapacity, was told by Mr. Lewis that she was "out of the voting" and could not further participate in the discussion of or voting on the remaining issues. The same jurors testified that after juror Knox disagreed with the remaining jurors on the answer of "Permanent" to issue no. 3B, inquiring as to the ending date of partial incapacity, she also was told by at least Lewis, and perhaps the foreman, that she, too, was "out of the voting", and would not be allowed to have any further input or voice in the remaining issues.
As a result of this obvious misconduct, Mrs. Poole was not allowed to have any voice whatever, in the remaining issues, which inquired about the beginning and ending date of total incapacity, whether there was any partial incapacity, and if so, when it began and when it ended, the average weekly earning capacity of appellee during partial incapacity, or whether or not a previous injury had contributed to Watson's present incapacity, and if so, the percentage of such contribution.
Juror Mary Ann Knox would not vote for an answer of permanent to issue no. 3B, inquiring of the duration of partial incapacity, so she thereafter was excluded from any consideration or decision on the answers to that question as well as to issues inquiring about Watson's average weekly earning capacity during partial incapacity, and whether or not the prior injury suffered by Watson contributed to his present incapacity, and if so, the percentage of such contribution.
Other acts of jury misconduct alleged by appellant involved discussions of personal experiences by the vociferous Mr. Lewis, who operated a truck repair business, numerous discussions by Mr. Lewis and the foreman to the effect that the jury needed to agree on the answer to issue no. 3b, inquiring as to the ending date of partial incapacity, and all other issues, so as to save the taxpayers the expense of another trial. There was also discussion, again by the helpful Mr. Lewis, as to the average weekly wage of nonunion truck drivers, which Watson was after the injury of November 9, 1977, and some conversation by several of the jurors about the amount it would take per week to support a family. None of these matters were the subject of any evidence during the trial.
Six of the twelve jurors testified at the hearing on the motion for new trial, and while some of their testimony conflicted, the trial court found that "some of the jury misconduct did occur". The trial judge did not specify which of the above mentioned acts constituted jury misconduct and we assume, for our purposes, and we believe from the evidence, that most, if not all, of those acts did constitute jury misconduct.
The foreman and Mr. Lewis testified that all of the jurors agreed that after one juror voted "no" to any issue, that they were "out of the voting" and could no longer participate as jurors. Juror Knox specifically denied any such agreement by the jury. Most of the other jurors, or at least three of them, testified that this action was taken as a result of instructions of Mr. Lewis and the jury foreman. Three of the jurors also testified that at no time was the glib Mr. Lewis told not to mention such matters, and while other jurors disputed that testimony, we think that the finding of the trial court that misconduct did occur makes that conflict in the juror's testimony meaningless.
Juror Sloan, called by appellee at the hearing on the motion for new trial, admitted that jurors Poole and Knox were prohibited from participating in the discussion and voting on remaining issues after they voted contrary to the other ten jurors. She said Lewis and the foreman of the jury set this policy, which, according to Sloan, they got from the "rules" or instructions given them by the court.
We think it is clear from the testimony of the majority of the jurors who testified at the hearing that this policy of prohibiting the two women jurors from further discussion and voting on remaining issues after they each had voted in a manner contrary to ten of the jurors was instigated by the loquacious Mr. Lewis and the jury foreman. However, it makes no difference whether that was the case or whether that policy was set by agreement of all jurors. That policy, which effectively eliminated two of the twelve jurors from full participation in the jury deliberations violates the very essence and spirit of the jury system and deprived the parties of a full and fair trial by jury.
Tex.R.Civ.P. 327 governs the granting of new trials for jury misconduct. It provides in pertinent part:
Where the ground of the motion is misconduct of the jury ... the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, ... material, and if 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.
Thus, to show entitlement to a new trial, the moving party must establish (1) that misconduct occurred; (2) that it was material misconduct; and (3) that based on the record as a whole, the misconduct probably resulted in harm to that party. Strange v. Treasure City, 608 S.W.2d 604 (Tex.1980); Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424; Flores v. Dosher, 622 S.W.2d 573 (Tex.1981); Keltner, Jury Misconduct in Texas: Trying the Trier of Fact, 34 S.W.L.J. 1131, 1136 (1980).
Whether the jury misconduct has occurred is a question of fact to be determined by the trial judge, and if there is conflicting evidence on this issue, the finding of the trial court is binding on appellate review. Strange v. Treasure City, supra. Once it has been determined that an act or acts of misconduct have occurred, as is the case here, the...
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