Trousdale v. Texas & N. O. R. Co.

• Decision Date: 18 November 1953
• Docket Number: No. 12539,12539
• Citation: 264 S.W.2d 489
• Parties: TROUSDALE v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

Page 489

264 S.W.2d 489

TROUSDALE v. TEXAS & N. O. R. CO.

No. 12539.

Court of Civil Appeals of Texas, San Antonio.

Nov. 18, 1953.

Rehearing Denied Feb. 10, 1954.

Stahl & Sohn, Robert B. O'Connor, San Antonio, for appellant.

Brewer, Matthews, Nowlin & Macfarlane, San Antonio, Baker, Botts, Andrews & Parish, Houston, for appellee.

POPE, Justice.

Appellant, the plaintiff below, appeals on the ground that the jury was guilty of misconduct. Appellant sued for damages arising out of personal injuries sustained in a railroad accident, and the jury found against him both on the negligence and unavoidable accident issues. The controlling point urged in this case is whether prejudicial misconduct resulted when two jurors allegedly stated during deliberations, that findings on the negligence and unavoidable accident issues were immaterial after the damage issue was answered, and as a consequence of which two other jurors changed their votes.

Appellee contends that no prejudicial misconduct occurred, but that in any event it would be immaterial, because appellee was entitled to an instructed verdict. The parties have at length detailed the pertinent evidence they adduced in support of their claim and defense. Fact issues were clearly raised, and no good purpose would be served by restating their extensive proofs. This case is controlled by the presence or absence of prejudicial misconduct.

The trial court made and filed findings of fact and conclusions of law. Those findings were prefaced by a 'preliminary statement' which detailed the reasoning process of the trial judge in weighing and sifting the evidence. Appellant, in the trial court and here, objected seriously to the process which included consideration of the method of counsel's questioning, the trial court's disapproval of the use of a trained investigator, and the failure to prove all matters stated in affidavits attached to the motion for new trial. Appellant urges that these findings are untenably grounded and for that reason should not be considered.

Since the trial court found that misconduct existed with reference to the above stated misconduct, appellant is not harmed by the trial court's method in reaching that conclusion. As stated in Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622, 623, and other opinions of the Supreme Court: 'Whether misconduct of the jury occurred is a question of fact to be proven by the complaining party on the hearing of the motion for a new trial, but after the misconduct has been established, then it is a question of law for the trial court, and on appeal the reviewing court, as to whether injury probably resulted to the complaining party. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462.' Hence, the collateral considerations by the trial court harmed appellant in no way, since they did not obstruct a finding of misconduct and the effect of misconduct is a law question which this Court must independently determine. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200.

The record manifests much work and a careful consideration by the trial court of the evidence developed at the misconduct hearing. However, the record is surfeited with inquiries into the jurors' thoughts, beliefs, motives, intentions, desires and wants. It is replete with jurors' self-appraisals and affirmations and denials of influence. The findings of the trial court, which relate to the law question of probable harm, are a mixture of overt acts, which we may properly consider, and of mental operations and states of mind of certain jurors, which we may not consider.

The court found that a single juror made the statement that the answers were immaterial after the damage issue was answered; that the vote of the jury stood ten to two in favor of the defendant on the negligence and unavoidable accident issues, with Jurors Page and Zamora holding out for the plaintiff; that while so divided, 'the juror Gring expressed the opinion, in accordance with his honest belief, that he did not think that it would make any difference, that he did not think that the railroad would have to be found negligent for the plaintiff to be awarded the money.' The court found that the statement was not discussed. After Gring, who was foreman, made the statement, the two hold-outs changed their votes. On contradictory evidence the court refused to find that a second juror, Crawford, made a similar statement. The court found further that Page and Zamora 'both believed that the evidence did not show negligence, but both voted 'yes' on the first ballot merely because they thought that they could award damages in no other way, and that on the second ballot they both voted in accordance with their true conviction.' The court found also that Page 'expressed his opinion to other members of the jury that negligence had not been shown by the evidence,' but that Page, despite that admission, voted 'Yes', 'contrary to his conviction that negligence had not been prove * * * and that on the second ballot he voted in accordance with that conviction.' And as regards Zamora, the court found that he stated during deliberations, that he thought voting for negligence was the only way the plaintiff would be awarded some money. The court then found that Zamora was asked, during deliberations, if that was the only reason for so voting, and that Zamora, when so confronted, did not offer any argument or express any opinion in support of his vote. From this the court concluded that Zamora 'did not believe that the evidence showed negligence,' notwithstanding his vote showing there was negligence.

The trial court determined that the misconduct did not result in probable injury, but reached this result through an endeavor to isolate the jurors' so-called honest and true convictions, both before and after the misconduct occurred. The court concluded that before the misconduct occurred Page's and Zamora's honest convictions were contrary to the way they were voting. After the misconduct, the court found that they voted honestly. The court's determination of the jurors' true convictions was grounded on (1) a statement that Page made during the jury deliberation, to the effect that the evidence did not support his vote, and (2) Zamora's silence, when confronted with the charge that the only reason for his voting 'yes', was to give the plaintiff damages. Page's statement was not misconduct, and a serious question arises whether a court can pass judgment on attitudes and remarks that concern the thoughts of jurors about the issues. Jurors, while deliberating, may take tentative or contingent positions, assume hypotheses, made concessions for purpose of argument, think out loud, think illogically, and change from one position to another many times. Jurors, within their province, even have the right to be wrong. Our faith in the system rests upon our confidence that other jurors will make the better reason prevail. But to permit courts to hear testimony about a statement made during deliberations, not itself misconduct, but revealing the status of thought or changing thought, and to use it as a predicate to show that a juror 'ought' to have voted a certain way at a given point in the deliberations would be an intrusion into the affairs of jurors that has never been tolerated. The effect of such procedure is that a judge casts a vicarious vote for the juror at some point in the deliberations.

Zamora's statement that a finding of negligence was the only way plaintiff could recover, is regarded by the trial court finding as Zamora's only motive for holding out. In support of the view that such motive was the only reason rather than a reason, the court found that Zamora remained silent when confronted with such an accusation by another juror. A court is not a thirteenth supervisory juror who may compel one juror to answer another, or determine when a juror should speak or be silent at the risk of making an admission against interest. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028; Glazer v. Woodward, Tex.Civ.App., 127 S.W.2d 938. Jurors may talk themselves out of or listen themselves into mental attitudes. If courts may determine a juror's mental state by his failure to retort to reasons stated during deliberations, future cases will find courts and other jurors passing upon the mental operations of jurors singly or collectively. Even misconduct by Zamora does not excuse Gring's misconduct. If Juror Zamora was guilty of misconduct, which is not urged, the remedy is a new trial, but not misconduct of a different kind on the part of another juror. Gring's misconduct, in stating that certain issues were immaterial, is neither excused nor purged by proof that the misconduct converted another juror from an ill-founded position to a well-founded one.

Texas, after 1905, relaxed the common-law rule that prohibited all impeachment of a verdict, but, at the same time, drew the line with reference to inquisitions into jury deliberations at the point where the inquiry probes the juror's mind. The rule is settled that a juror's mental processes may not be probed. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028. The temptation to encroach upon and evaluate the thoughts of jurors has on certain occasions required a re-statement of the rule, and an overruling of precedents, even of the Commission of Appeals, that yielded to the allurement. Traders & General Insurance Co. v. Lincecum, 130 Tex. 220, 107 S.W.2d 585.

When the general rule is applied to specific inquiries, we find these results: A juror's disavowal of influence derived from misconduct is not a proper inquiry. Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622; Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642; Traders & General Ins. Co. v. Lincecum, supra (expressly overruling decisions to the contrary); Republic Ins. Co. v. Hale, 128 Tex. 616, 99 S.W.2d 909; Sidran v. Western Textile Products Co.,...