Weidmer v. Stott

• Decision Date: 13 February 1932
• Docket Number: No. 12628.,12628.
• Citation: 48 S.W.2d 389
• Parties: WEIDMER et al. v. STOTT.
• Court: Texas Court of Appeals

48 S.W.2d 389

WEIDMER et al. v. STOTT.

No. 12628.

Court of Civil Appeals of Texas. Fort Worth.

February 13, 1932.

Rehearing Denied March 12, 1932.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by J. C. Stott against R. T. Weidmer and others. From judgment for plaintiff after remittitur, defendants appeal.

Reversed and remanded.

E. M. Mann and Raymond M. Myers, both of Wichita Falls, for appellants.

Jno. M. Martin and C. M. McFarland, both of Wichita Falls, for appellee.

DUNKLIN, J.

R. T. Weidmer, J. L. Dashner, and George Dashner, doing business as partners under the trade name of Texas Electric Company in the city of Wichita Falls, and engaged in operating a filling station for the purpose of selling to the public gasoline and oil and automobile tires and repairing cars and changing and repairing automobile tires, had in their employment J. C. Stott. On about September 9, 1930, Stott undertook, as part of the duties of his employment, to change tires on an automobile by using a jack to raise the car. He instituted this suit against the members of the partnership to recover damages for injuries which he alleged were sustained by him while so engaged by reason of being struck in the stomach by the lifting lever of the jack when the jack slipped. According to his further allegations, the slipping of the jack was the result of its defective condition, in that it was an old secondhand, obsolete jack, practically worn out, with the catches and lugs so badly worn as to make it dangerous. His claim for damages was based upon a charge of negligence on the part of the defendants in furnishing him the jack for use in that defective and dangerous condition. The defendants have prosecuted this appeal from a judgment in favor of the plaintiff.

The judgment was based upon findings of the jury upon special issues submitted to them; the amount of the verdict returned and for which judgment was originally rendered being $2,710.50. But, upon complaint made by the defendants in their motion for new trial of misconduct of the jury, the court found that the jury was guilty of misconduct, and by reason thereof required the plaintiff to remit the sum of $1,355.25, which remittitur was duly filed, and thereupon the judgment originally rendered was reduced in that sum, leaving a final judgment for plaintiffs in the sum of $1,355.25. And thereupon the motion for new trial was overruled.

The record shows that, upon the hearing of the motion for new trial, the defendants introduced as witnesses four of the jurors who took part in the trial of the case. It appears conclusively from the testimony of those jurors that the plaintiff was allowed attorney's fees which were included in the amount of damages awarded; and the trial judge so found, but further concluded that the remittitur required would cure the verdict of that taint. Some of the jurors stated that one-half of the amount of damages shown in the verdict was allowed to cover plaintiff's attorney's fees, while the testimony of others was somewhat indefinite as to the amount that was allowed for attorney's fees.

L. W. McCrory, foreman of the jury, testified in part as follows:

"There was some discussion in the jury room during the time that we were making up our minds with reference to this verdict about attorney's fees. It is my remembrance that one of the jurors expressed the opinion that Mr. Stott would have to pay attorney's fees out of any verdict which was rendered in his favor, and that in all probability he would not obtain the medical and surgical services that he required, unless an amount was rendered sufficient to cover both. By `both' I mean doctor's bills and attorney's fees. It is my remembrance that there was somewhat of a general discussion on that point about the attorney's fees, and that more than one participated therein. I do not recall that there was any statement made as to the amount that the attorneys would get other than what I have already stated.

"I originally had in mind the sum of $1,000.00; I finally agreed to a figure of $2,710.50. I could not name any one specific thing that influenced me in bringing it up from $1000.00 to $2,710.50. The general discussion about the jacks, the personal experiences, and the attorney's fees were the things that influenced me in bringing my verdict up, this general discussion in the jury room."

Another juror, C. I. Halford, testified in substance that he first concluded that plaintiff should be awarded $3,500 damages, and that he thought that the doctors and attorneys should get one-half of that sum, but that later he agreed with the other jurors in the verdict rendered.

Another juror, J. S. Doss, testified in part as follows: "In arriving at this verdict we did take into consideration attorneys' fees. According to our figures and all I believe that we just estimated the attorneys' fees at fifty per cent. Think we allowed something like fifty per cent of the amount recovered for attorneys' fees. We wanted to make the man whole, and we gave him fifty per cent; I think that is right."

Another juror, J. W. Parker, testified in part as follows:

"There was something—we figured $1,300.00 and some odd dollars that he was supposed to get, and that was to take care of his family. We figured that $1,300.00 for the operation and the wages. As to the balance of it, we supposed that the attorneys wanted something, and if he did not get it there, he could not get it at all.

"We allowed him something over $1,300.00 for his medical attention and his wages, and as to the balance, we did not know whether his attorneys would get it or not. We had no idea about how much the attorneys' fees would be; we figured enough in so that they would get a little something."

Misconduct of the jury was thus definitely established, and under the decisions of the Commission of Appeals in St. Louis Southwestern R. Co. v. Lewis, 5 S.W.(2d) 765, same case on rehearing, 10 S.W.(2d) 534, and City of Waco v. Darnell, 35 S.W.(2d) 134—in each of which it was held that a verdict tainted with misconduct of the jury was not cured by a remittitur filed—the judgment of the trial court must be reversed. According to the rule announced in those decisions, in order to overrule the assignment based on such misconduct, it must clearly appear that the appellant has suffered no injury by reason thereof. We cannot say that the remittitur required by the trial judge was sufficient to cure the vice in the verdict rendered; especially so since the testimony of all the jurors left it uncertain and indefinite as to just how much the jury finally agreed to allow for attorneys' fees.

In St. Louis S. W. R. Co. v. Lewis (Tex. Com. App.) 10 S.W.(2d) 534, in an opinion by Justice Critz, the following was said: "With reference to the tender of remittitur, it will be noted that the defendant in error has offered to remit $3,500 of the $8,500 judgment, centending that such amount of $3,500 covers all of the verdict that can possibly be tainted by any misconduct of the jury, and that the verdict to the amount of $5,000 is in all events free from taint of such misconduct, and properly arrived at. In this connection it will be further noted that, according to the record, it is shown that, at the time the misconduct of the jury occurred the jury had already reached an agreement resolving all issues submitted to them in the court's charge in favor of the defendant in error, Lewis, except they had not agreed on the amount of damages; and on this issue the lowest jurors were contending for $5,000, and the others for higher amounts. Under this state of the record, we are unable to say that a remittitur of the part of the judgment in excess of $5,000 would cure the error and eliminate the taint of misconduct, for the reason that to so hold would, in effect, be holding that, had the misconduct not occurred, the jury would have reached a verdict for an amount at least as great as that contended for by the...