Tucker v. Lightfoot, 16792
| Decision Date | 04 May 1983 |
| Docket Number | No. 16792,16792 |
| Citation | 653 S.W.2d 587 |
| Parties | J.J. TUCKER, Appellant, v. William M. LIGHTFOOT, Appellee. |
| Court | Texas Court of Appeals |
Kenneth L. Clark, San Antonio, for appellant.
Sam C. Bashara, San Antonio, for appellee.
Before CADENA, C.J., and CANTU and TIJERINA, JJ.
This is a medical malpractice case. A Bexar County jury found that appellant Dr. J.J. Tucker, defendant below and a dentist, negligently performed an overdenture procedure on appellee William Lightfoot, the plaintiff below. In response to special issues 1 and 2 the jury affirmatively answered that the appellant was negligent in the diagnosis or treatment of the appellee and that such negligence was the proximate cause of damages to the appellee. The jury answered the comparative negligence issues in the negative. In the only special issue complained of in this court, Issue No. 7, the jury awarded appellee $31,000.00 for physical pain, mental anguish and disfigurement, and $46,500.00 for loss of earnings in the past.
Appellant raises nine points of error. These points of error fall into two groups, the first directed at alleged jury misconduct, and the second challenging the sufficiency of the evidence to support the jury's answers to the damage issues. We shall address the jury misconduct contentions first.
This court, in reviewing the record to determine if misconduct did indeed occur, is bound to apply certain legal criterion. The starting point is Tex.R.Civ.P. 327 (Vernon 1977).
Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, or the erroneous or incorrect answer on voir dire examination, be 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.
Therefore, under Rule 327 the party seeking redress in our court must show that (1) the misconduct actually occurred; (2) that such misconduct was material; and (3) that the misconduct probably resulted in harm in view of the record as a whole. Strange v. Treasure City, 608 S.W.2d 604, 606 (Tex.1980); Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969); Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951).
In regard to the first requirement, our fact finding jurisdiction is quite limited. As the Texas Supreme Court stated:
Whether the alleged misconduct has occurred is a question of fact, and if there is conflicting evidence on this issue, the finding of the trial court is binding on appellate review. If, however, the evidence of misconduct is not conflicting, a reviewing court is not bound by a finding of the trial court which is contrary to conclusive evidence. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965); State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961); Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App.--El Paso 1974, writ ref'd n.r.e.).
Strange v. Treasure City, 608 S.W.2d 604, 606 (Tex.1980).
In the case before this court, no findings of fact and conclusions of law were requested of the trial court and none appear in the record. We must presume, therefore, that the court found that no misconduct occurred, provided there is evidence to support such a finding. Strange v. Treasure City, supra; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, 465 (1943); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932).
Appellant alleges two instances of misconduct, the mention of insurance during deliberations, and the use of what appellant calls a "guideline figure" to determine damages.
Two jurors, Donna Howson, one of the dissenting jurors, and Robert Morrison, the jury foreman, testified at the hearing on appellant's motion for new trial. On direct examination, Ms. Howson testified that one of the jurors mentioned that dentists usually carry liability insurance. According to Howson, the statement was made prior to the jury's consideration of the damage issues. She also stated that while she was not aware of who heard the statement, she stated it could be heard from the opposite end of the table where she sat. On cross-examination Howson admitted that the mention could be characterized as vague and that it was followed immediately by a rebuke from the foreman.
The jury foreman testified that there was one mention of insurance which received a prompt rebuke. He agreed with appellee's attorney that the comment was "casual". He did not know how many jurors heard the comment.
While mention of insurance "... no longer carries with it the magic for reversals that it once did," Boyd, The Current State of Jury Misconduct Claims in Texas Civil Cases, 21 S.Tex.L.J. 23, we are not unaware of the fears expressed in Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, 465 (1943) about the effects of a jury's knowledge that damages are to be paid by a collateral source. In Strange v. Treasure City, supra, the court quoted the following passage from Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493, 495 (1956), which we believe shows the current thinking of the Supreme Court on the question presented.
"It is our opinion that a mere casual mention of insurance, without discussion, followed by a prompt rebuke from a fellow juror, does not constitute such misconduct as would require a reversal of the judgment based on the jury's verdict." Since there was not an extended discussion about insurance, and each mention of it was promptly rebuked, we conclude that the misconduct was not material.
See also 3 R. McDonald, Texas Civil Practice § 14.09 (1970). Pope, Jury Misconduct & Harm, 12 Baylor L.Rev. 355 (1960). We find no evidence in the record that misconduct or harm occurred or resulted to appellant from the incident of which complaint is made. Appellant's fifth point of error is, therefore, overruled.
"Guideline Figure" or Arbitrarily Apportioned Award of Damages
Appellant's first four points of error complain of the method used by the jury in answering special issue 7a and b, the damage issue. Juror Howson testified at the motion for new trial hearing that when the jury reached the jury room, the jurors were unanimous that the dentist acted negligently. 1 According to her testimony on direct examination, the jurors then took the total amount asked for by appellee and divided it in half because, although they answered the comparative negligence issue in the negative, they felt that the appellee was partially responsible for his damages. After deciding that they were only going to award $77,500.00, Howson testified, the members of the jury without further discussing any of the evidence arbitrarily decided to attribute 60% of the $77,500.00 to loss of earnings and 40% to the pain and suffering portion. According to her testimony on direct examination, there was no discussion of evidence either before the jury decided on the guideline figure or arbitrarily apportioned that amount.
On cross-examination the witness gave contradictory testimony. She stated that the $77,500.00 figure was a compromise between jurors who believed the appellee should have more money and those who thought he should have less. She stated that the jurors did discuss the evidence of both the total amount awarded and the individual amounts to be apportioned to loss of earning and pain and suffering. On recross, she also testified that the 50% figure was a compromise on damages and not a finding on the appellee's negligence. Most importantly, she testified, there was no agreement by the jurors to be bound by any of the figures.
Foreman Morrison, on the other hand, unequivocally stated that the 50% compromise figure was actually arrived at because several jurors believed the appellee to be proportionately negligent. He also testified that the percentages were arrived at after a full discussion of the evidence. There were several votes on the damage figures, Morrison testified, and before a vote was taken on each percentage mentioned, the percentages were reduced to a dollar amount. According to his testimony, there was no agreement to be bound to the amounts by any of the jurors.
The evidence adduced at the motion for new trial hearing being in conflict, we are bound by the implied findings of the fact finder below. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965). The evidence before us would clearly, because of the conflicting testimony, support a fact finding either way. In any case, we cannot say that the finding is "contrary to conclusive evidence" as required by Strange v. Treasure City, supra. Indeed, the uncontradicted evidence given by both jurors shows there was no agreement to be bound by the alleged guideline figure and therefore no error is shown. Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.--Texarkana 1978, no writ). Appellant's first four points of error are, therefore, overruled.
Appellant, in his sixth, seventh, eighth and ninth points of error argues that there is no evidence, or insufficient evidence to support the jury's answer to Special Issue No. 7, and alternatively, that the answers to that issue are against the great weight and preponderance of the evidence so as to be manifestly unjust. In view of these contentions we will first view the evidence in the light most favorable to the jury's verdict, discarding all adverse evidence and consider only the evidence which supports the verdict of the jury. Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938 (1959).
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