Thompson v. Railway Express Agency

• Decision Date: 13 November 1947
• Docket Number: No. 11928.,11928.
• Citation: 206 S.W.2d 134
• Parties: THOMPSON v. RAILWAY EXPRESS AGENCY et al.
• Court: Texas Court of Appeals

206 S.W.2d 134

THOMPSON v. RAILWAY EXPRESS AGENCY et al.

No. 11928.

Court of Civil Appeals of Texas. Galveston.

November 13, 1947.

Rehearing Denied December 4, 1947.

Appeal from District Court, Harris County; William M. Holland, Judge.

Action for damages allegedly sustained when plaintiff was struck by truck, by Mrs Stella Leon Thompson against Railway Express Agency and another. From an adverse judgment, the plaintiff appeals.

Affirmed.

Helm & Jones and W. J. Kronzer, Jr., all of Houston, for appellant.

Wm. C. Harvin, III, and Tom M. Davis, both of Houston (Baker, Botts, Andrews & Walne, of Houston, of counsel), for appellees.

CODY, Justice.

This was an action brought by appellant against appellee Railway Express Co., Inc., and one of its truck drivers, appellee L. J. Stringer, to recover damages she sustained when she and a truck belonging to the Express Company, driven by Stringer, collided. The collision occurred at the intersection of Texas Avenue and San Jacinto Street, in Houston. Appellant was crossing Texas Avenue on foot when the accident occurred.

From an adverse judgment, appellant prosecutes her appeal on two grounds, (1) jury misconduct, and (2) an irreconcilable conflict in the answers of the jury to special issues.

We must overrule appellant's first point, urging jury misconduct. In paragraph VIII, of her amended motion for new trial, appellant alleged jury misconduct in these terms:

"Plaintiff would further show that jury misconduct was committed in the jury room when the statement was made by some one or more of the jurors and relied on by one or more of the other jurors to the effect that so long as damages were found by the jury, the plaintiff would get money, if the defendant were found negligent and that it would not cause her to lose the case, if the issues on contributory negligence such as lookout and proximate cause were answered against her. The juror or jurors who relied upon this statement believed this statement to be true and that the only reason that they were prevailed upon to change their answers from `no' to `yes' on Special Issues Nos. 19 and 20, was because they believed from the evidence and by the testimony that this young woman did keep a proper lookout at all times, from all sides and from all places, and they relied on this erroneous statement of the law and were prevailed on to change their answers upon the belief that, because all the other questions had been answered favorably to the young woman that she would recover and that the contributory negligence findings were immaterial."

To appellant's above-quoted allegations of jury misconduct, appellees specially excepted on the grounds, (a) that said allegations were so vague as to merely constitute a fishing expedition on the issue of jury misconduct, "in that said motion wholly fails to set forth the name or names of the juror or jurors who are alleged to have committed the said acts complained of, or the name or names of the jurors who were present when said alleged statements were made and heard the same and relied thereon"; (b) "said motion does not have the affidavits, or copies of affidavits, of any jurors attached in support of said alleged misconduct and said motion wholly fails to set forth any excuse for not attaching affidavits of one or more jurors in support of said allegations, and consequently said motion is wholly insufficient in this respect."

Appellant, by raising the issue of jury misconduct, was invoking the application of Rule 327, Texas Rules of Civil Procedure. In Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 483, 163 S.W.2d 644, 646, the Supreme Court adopted standards for determining whether allegations of jury misconduct were sufficient to require the judge to try the issue of jury misconduct which it was alleged took place outside of the presence of said presiding judge. The court there stated, in effect, that (1) the affidavits showing such jury misconduct should be attached to the motion for new trial, (2) or said motion should disclose a reasonable explanation or excuse for the failure to have such affidavits so exhibited; "but", continued the court, "in the absence of such affidavits or a reasonable excuse for not exhibiting the same, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge."

Upon the hearing on the motion for new trial appellant called certain of the jurors to testify on the issue of jury misconduct. Appellees thereupon objected to the jurors being heard upon the same grounds as that set forth in their special exceptions to appellant's allegations of jury misconduct. Said objection to the testimony sought to be elicited by appellant, was an invocation by appellees of the ruling made in the Murphy case, supra, to the end that the standards adopted by the Supreme Court in the Murphy case be applied for the purpose of preventing appellant from embarking on a "fishing expedition" to uncover evidence of jury misconduct. The trial court sustained appellees' objection to such testimony. Whereupon appellant excepted, and, for the purpose of her bill of exceptions only, the court permitted the jurors to be examined and cross-examined.

The ruling in the Murphy case was made at a time the bench and bar labored under uncertainty and confusion between whether, in charging jury misconduct which occurred out of the presence of the court, the strictness of the common-law rule which required matter dehors the record be made to appear by affidavit, should be employed, or whether the laxity of pleading, which would permit a losing litigant to conduct a "fishing expedition" on the chance he might uncover jury misconduct, could be used in alleging such jury misconduct. It is immaterial whether, in the Murphy case, the movant was there held, upon easier terms, to have demonstrated that he had knowledge that misconduct had occurred, and to have given an adequate guaranty of good faith in making the charge, than the terms prescribed by the ruling in the Murphy case, for future cases. In any case, it was made to appear in the Murphy case that the movant in that case could have qualified under the standards there prescribed, and it was held that the trial court abused his discretion in not hearing the testimony, because the movant had named the jurors, exhibited their written, though unsworn statements, and produced for the hearing said jurors to prove said statements.

But here appellant, in the light of the ruling in the Murphy case, and in disregard of appellees' special exceptions seeking to require a compliance with such ruling, failed to comply with the prescribed standards. The court's refusal to hear testimony of misconduct was clearly a matter involving the exercise of a sound judicial discretion, within the ruling in the Murphy case.

For the purposes of her bill of exceptions to the court's refusal to hear their testimony, the court permitted the eleven jurors who were summoned to be examined and cross-examined. Such testimony can be considered only for its bearing on whether the court's refusal constituted an abuse of discretion. At the hearing so held for the purpose of appellant's bill of exceptions, one of the jurors, a Mr. Cherry, testified: That there was considerable argument about the answer to Special Issue No. 19, the "proper look-out" issue. That he finally changed his answer thereto to "Yes", and he testified that while he was holding out on the issue, "Well, the statement was made when I was holding out on the question, that they would take our findings, and base it on our findings, and award the girl her suit." He further stated he would never have given in if he hadn't believed the statement he heard in the jury room, and believed the girl would have a judgment for damages. In response to questions by ...