Union Bus Lines v. Moulder

• Decision Date: 19 April 1944
• Docket Number: No. 11382.,11382.
• Citation: 180 S.W.2d 509
• Parties: UNION BUS LINES et al. v. MOULDER.
• Court: Texas Court of Appeals

180 S.W.2d 509

UNION BUS LINES et al. v. MOULDER.

No. 11382.

Court of Civil Appeals of Texas. San Antonio.

April 19, 1944.

Appeal from District Court, Live Oak County; W. G. Gayle, Judge.

Action by John J. Moulder against Union Bus Lines and others for injuries sustained by plaintiff bus passenger in a collision between a bus and a truck. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Eskridge, Groce & Chiles and T. P. Hull, all of San Antonio, Harry Schulz, of George West, Sid L. Hardin, of Edinburg, R. E. Schneider, of George West, and Johnson & Rogers and Nat L. Hardy, all of San Antonio, for appellants.

Pichinson & Alsup, John Pichinson, Phillips & Anderson, and H. L. Ratliff, all of Corpus Christi, for appellee.

NORVELL, Justice.

This action grew out of a collision between a bus of the Union Bus Lines (Joe Amberson, owner) and a truck of Kimbriel Produce Company, Inc., which occurred at the intersection of State Highway No. 72 and Federal Highway No. 281, near the north city limits of the town of Three Rivers, Texas. See Kimbriel Produce Company, Inc. v. Tracy L. Mayo et al., Tex.Civ.App., 180 S.W.2d 504. John J. Moulder, plaintiff below, recovered a judgment of $5,000 against Amberson and Kimbriel, jointly and severally. Contribution between said parties was awarded under the provisions of Article 2212, Vernon's Ann.Civ.Stats.

Amberson and Kimbriel have both appealed and filed separate briefs herein. Amberson is also in the position of an appellee before this court with reference to certain of Kimbriel's points hereinafter mentioned.

Both appellants contend that this cause must be reversed because of misconduct of the jury.

The jury returned into court their verdict containing a finding that Moulder had sustained damages in the sum of $12,500, and judgment was entered in Moulder's favor for that amount.

Appellants filed motions for new trial alleging that the members of the jury during their deliberations discussed the following matters, i. e., that plaintiff would have to pay part of the damages awarded to him for attorneys' fees; that appellants were covered by insurance; that the Federal Government would take a part of the recovery for income taxes, and that certain medical expenses excluded from the jury's consideration by the court's charge would have to be paid.

Upon the hearing of the motion, eleven of the jurors were present and nine testified. The trial court entered an order which in part reads as follows:

"* * * and the court after hearing and considering said motions and the testimony of the jurors with respect to the misconduct of the jury in receiving new evidence during their deliberations and in considering matters not properly before said jury is of the opinion that the motions of the defendants for a new trial are well taken as to the judgment entered for all sums in excess of Five Thousand Dollars ($5,000.00).

"It is further the opinion of the court and the court finds as a fact from the testimony of the jurors, that the jury properly arrived at and agreed upon the sum of Five Thousand Dollars ($5,000.00) as the amount of damages sustained by plaintiff; that said amount was agreed upon prior to any misconduct of their part and that no misconduct of the said jury exists with reference to said sum of Five Thousand Dollars ($5000.00); and the plaintiff having announced in open court that he would file a remittitur in the sum of Seventy-five Hundred Dollars ($7500.00) and said remittitur having been filed and duly entered of record for such amount, the same is thereby eliminated from said judgment and said judgment to the amount of Seventy-five Hundred Dollars ($7500.00) is set aside and annulled; but as to the remainder of said judgment in the amount of Five Thousand Dollars ($5000.00), the said motions for a new trial are hereby refused and overruled; * * *."

It is apparent from the wording of the order that the trial court held, as a matter of fact, that misconduct on the part of the jury did take place and concluded, as a matter of law, that probable injury resulted to appellants. Rule 327, R.C.P. We have examined the record and find that the trial court's finding of misconduct is amply sustained by the evidence. We likewise conclude that probable injury to appellants resulted from such misconduct.

The trial court was of the opinion, however, that all taint of misconduct could be removed from the verdict by a remittitur of $7,500.

In this connection, appellants properly challenge the finding of the trial court contained in the order that "the jury properly arrived at and agreed upon the sum...