Texas & N. O. Ry. Co. v. Parry

• Decision Date: 23 January 1929
• Docket Number: (No. 1144-5097.)
• Citation: 12 S.W.2d 997
• Parties: TEXAS & N. O. RY. CO. v. PARRY et al.
• Court: Texas Supreme Court

12 S.W.2d 997

TEXAS & N. O. RY. CO. v. PARRY et al.

(No. 1144-5097.)

Commission of Appeals of Texas. Section A.

January 23, 1929.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Mrs. Emma Parry and another against the Texas & New Orleans Railway Company. Judgment for plaintiff was affirmed by Court of Civil Appeals , and defendant brings error. Reversed and remanded.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for plaintiff in error.

Ewing Werlein and Devereaux Henderson, both of Houston, for defendants in error.

CRITZ, J.

This suit was originally instituted in the district court of Harris county, Tex., by Mrs. Emma Parry and her husband, defendants in error in this court, against the Texas & New Orleans Railway Company, plaintiff in error, for the recovery of damages because of the alleged negligence of the railway company in allowing a rubber matting on the platform or step of one of its passenger coaches to become worn and defective. It is alleged in substance that Mrs. Parry was attempting to alight from a coach belonging to the railway company, and that she caught her foot in this defective matting on the platform or step of said coach, and was thereby caused to fall from said platform down the steps to the ground, said fall resulting in the injuries complained of. The railway company answered by general denial, and especially pleaded that the injuries were the proximate result of the plaintiff's own negligence, and contributory negligence. The case was tried before a jury on special issues. On the verdict of the jury on such issues, judgment was rendered for Mrs. Parry and husband against the railway company for $20,000. This judgment was duly appealed to the Court of Civil Appeals for the Sixth District, which court affirmed the judgment of the district court, and the case is now before this court on writ of error granted on application of the railway company.

By proper assignments of error the railway company contends that the judgments of the district court and of the Court of Civil Appeals should be reversed on account of the misconduct of the jury, in mentioning and discussing, while deliberating on the amount of the damages, the fact that the attorneys would get a part of the recovery, and also in mentioning and discussing the fact that the railway company had a fund set aside to pay such claims as the one on trial, and also in discussing certain other matters not necessary to mention here. We are of the opinion that the trial court committed error in not granting a new trial on account of the undisputed fact that, after the jury had agreed on answers to special issues which rendered the railway company liable to the plaintiff in damages, but before the jury had agreed on the amount of the damages, it was stated in the presence and hearing of at least several members of the jury, by some member or members thereof, in effect, that the attorneys would get a part of the judgment, and that the railway company had a fund set aside to pay for such accidents as is involved in the case on trial. Practically all of the jurors who tried the case were sworn as witnesses on the trial of the issue of misconduct on the hearing of the motion for new trial. The testimony is very voluminous and covers 43 pages of the transcript, and no good purpose would be served by repeating it here. The juror S. J. Ammons was offered as a witness by the railway company, and he testified in substance that the jury first agreed on answers to the question which submitted the issues of the liability of the railway company for the injuries complained of, and that, while they were considering the amount to be awarded, there was mention made about attorneys' fees, and also some one said there was a certain amount set aside for these accidents. This witness states that the matter of attorneys' fees was mentioned several times.

The witness Ammons also testified, in part, as follows:

"There was also a discussion about attorney's fees. I could not say positively who discussed or mentioned it, but it was discussed, some one said that there was a certain amount set aside for these accidents, and some of them said that the attorney sometimes got one-fourth and sometimes one-third."

"There was a statement that was made with reference to a fund the railroad company set aside to pay judgments and claims. The real estate man said that."

"With reference to your question that these discussions I have described about the attorney's fees and invalid wife and the other lawsuit where the man was a juror and a fund being set aside, and with reference to whether that took place before we finally arrived at the amount of the verdict, my answer is, `Yes, before the final verdict was written down and before we decided on it.'

"It is a fact when I got out there and gave my verdict that I tried to follow the instructions of the court. In passing on the verdict and answering those issues and giving the amount we found, I tried to rely on the evidence given by the witnesses and the charge of the court, I relied on what we were told by the Judge. The fact that another man had sit as a juror in a certain other case did not have anything to do with me in this case we were trying for Mrs. Parry. The fact that another man had a sick wife had nothing to do with this case, I know there is lots of sick women. When I allowed this amount I was not interested in the other cases, that is what I was trying to do. With reference to me coming up to fifteen thousand dollars and that I did not give that to cover attorney's fees, that I was giving it to Mrs. Parry under the instructions of the Court, my answer is, `Yes sir.'

"With reference to your question, `There was no discussion of the attorney's fees, but there was a mention of it, and immediately on mention of it, Mr. Brittingham called them down and said do not discuss that,' my answer is `I think so, but it was discussed at different times.' With reference to something being said about attorney's fees and Mr. Brittingham called him down and no more was said about it; it was discussed two or three times, but Mr. Brittingham called them down. Some said the attorney would get half, and some said they take it for one-third, and the real estate man said they set aside a fund. No one said they would get more than half. No one allowed more than half for the attorney's fee.

"With reference to your question, `As a matter of fact they did not allow anything for attorney's fees, they allowed it to Mrs. Parry's,' my answer is `Sure.' I could not say that they were not influenced by any of those discussions. I tried not to be. I have no interest in this case. With reference to whether I am willing for Mrs. Parry to get the judgment I gave her, my answer is, `I guess so.' I was not doubtful about whether I am or not at the time I rendered the verdict.

"With reference to your question, `It seems that I have changed my mind, and why do I hesitate to answer,' my answer is, `Because I have not been exactly satisfied with the verdict I rendered.' With reference to whether I was dissatisfied before or after I went to see the attorney for the railroad, my answer, `I was dissatisfied, that is the reason I went to see him.' I did not go to see him before he called me, he called for me Monday morning, I did not know if any of the rest of the jury were there, I have not seen any of them only this morning.

"The fact that some one said there was a fund set aside, that did not make any difference to me as far as the fund was concerned, I realized that without the man telling me about it. That didn't make any difference with me. On arriving at the verdict, I agreed on the amount with the others. I did that solely on the basis of the evidence submitted to the jury from the witnesses on the stand and the charges and ruling of the court, that is I tried to. With reference to this mention of attorney's fees was just a casual matter, my answer is `It was a casual matter several times.' Mr. Brittingham called them down once, and I told them I did not figure the attorney's fees myself."

"I did not allow any of this twenty thousand dollars for attorney's fees. I remember when you empaneled the jurors that you instructed us not to discuss or consider attorney's fees, and I tried to follow your instructions. I mentioned in the jury room your instructions and Mr. Brittingham mentioned it. I do not remember who discussed the attorney fees outside of Mr. Jordan, but I am sure that Mr. Jordan did and this furniture man mentioned it, there were two or three mentioned it I know. It was mentioned more than the one time."

Nearly if not all of the other jurors were offered as witnesses by the plaintiff in the trial court, and the substance of their testimony is to the effect that the matter of attorneys' fees was mentioned only once, and that the juror who mentioned it was called down by the foreman and told that they could not consider that...