Abrams v. Bradshaw , 2 S.W.2d 917 ( 1928 )

My dissent is based on the proposition that the evidence relied on to establish misconduct of the jury was conflicting, admitted of different conclusions, hence the trial court's action in overruling the motion for a new trial is final, and this court is without authority to hold to the contrary.

The statement of the nature and result of the suit is given by Mr. Justice Vaughan in the majority opinion.

The head and front of the jury's offending, as complained of by appellants, was that, before answering special issues, they agreed to allow plaintiff damages and to frame their answers so as to produce that result.

On this issue, the following conclusions are stated in the majority opinion:

"Five of the jurors, viz., C. L. Alexander, George Rice, J. J. Taylor, R. W. Roberts, and George A. Burton, testified in reference to the alleged misconduct of the jury substantially that the members of the jury, before answer had been made to the special issues submitted, agreed that the appellants should recover something, and further agreed that the sum of $500 should be the amount, and that the special issues submitted should be so answered as to give appellant Mrs. Otta F. Abrams recovery for $500; * * * that, in answering the special issues, all of the jurors had in mind the framing of same, so that the appellants would recover the sum of $500; * * * that what would be the effect of answering `yes' or `no' to all of said special issues, except No. 8, on said agreement was discussed by all of the jurors, some contending that the effect would be to prevent recovery by appellants, and others that it would not have that effect."

It may be conceded that these conclusions find support in the evidence, but it is also true that the contrary view finds abundant support; hence I cannot agree that these conclusions accurately reflect the meaning of the entire evidence.

My contention is that the evidence was conflicting on all issues that involved the alleged misconduct on which appellants relied for a new trial; such being the case, it was within the exclusive province of the trial court to settle the conflict, and, having done so, it cannot be correctly stated that its discretion was abused.

The following may be gleaned from the testimony of these jurors:

From that of Mr. Alexander: The jury decided to give plaintiffs something; they had their main trouble over special issue No. 7, which related to her contributory negligence; would not have answered as he did if he had known it would not give her anything, and particularly with reference to the last question (No. 7); the jurors argued it out and answered the seventh interrogatory "yes," as they did not think it would knock her clean out. On cross-examination, when the court was requested for instruction as to the effect of their answering "yes" to seventh special issue, they were told they would have to answer the issue without regard to the effect their answer would have. He said he did not disregard the evidence; that they weighed the evidence and answered honestly as to what the evidence required, except one (No. 7), and tried to answer that as best he knew how; that he answered "yes" but found out later that a "no" answer was required to give her a verdict; that he exercised his own judgment as to the result of the answer "Yes," and was not persuaded by any one; that he tried to answer special issue No. 1 honestly according to the evidence; answered No. 2 according to the evidence; answered No. 3 according to the evidence; answered No. 5 "yes" from the evidence; answered No. 7 to the best of his knowledge from the evidence. This witness said he was not persuaded nor influenced by any agreement to give her a judgment, and to frame answers to insure result, and answered according to the evidence and charge of the court, and finally said that he paid attention to the evidence in framing answers, and not to any agreement.

From Mr. Rice: The jury agreed to give plaintiff something before answering any of the questions, and tried to answer so as to give her something; a dispute arose in regard to the answer to special issue No. 7; that he would not have answered No. 7 "yes" if he had known it would have defeated plaintiff. On cross-examination: That he answered according to the best of his ability from the evidence; that they believed defendant was to blame, and were willing to put some blame on the plaintiff; that he did not deliberately disregard the evidence in order to frame answers; was willing to put some blame on her (plaintiff); that he knew when they wrote to the judge he would not answer their question, and that they would have to answer the same "yes" or "no" from the evidence; that no one convinced him that they should let the answer ("yes") to No. 7 stand, and did not just shoot in the dark.

From that of Mr. Taylor: On retiring the first day they read the charge of the court; the discussion was general; the jury was divided; no question was answered. On the second day the discussion was general, but less general, the testimony was considered more; the charge was read a number of times, issues considered, and ballots taken to ascertain the sentiments of the jury; did not come to a final agreement until the third morning, when an oral agreement was reached to the effect that, both sides had contributed to the accident, therefore defendant was liable for damages, but, inasmuch as the plaintiff contributed to her own injury, the amount of damages should be less; that the offense of the defendant should be mitigated; that they sought to answer the questions not inconsistently, but at the same time to let the verdict reflect that both parties were guilty of some negligence and to give the plaintiff $500; that in arriving at his conclusion, he was guided solely by the evidence, and from the evidence was convinced that the plaintiff was entitled to $500. After propounding to the court the question in regard to the effect of a "yes" answer to special issue No. 7, and after the court answered that the jury must not consider questions of law, they thereupon discussed the matter thoroughly, and agreed that the word "contributory" certainly could not mean that total responsibility was on the plaintiff; that they thought it divided the responsibility, and that was the answer the jury gave; that he would not have answered them the way he did had he known it would cut her off. Cross-examined, the witness testified that, he reached the conclusions before answering any issue that both parties were at fault and that plaintiff ought to recover something; that they answered question No. 1 according to their view of the evidence, and were not guided by giving the woman something, regardless of the evidence; that it was their intention to divide the responsibility and answered according to the evidence; that the answer to No. 5, finding plaintiff guilty of contributory negligence, was in conformity to the original agreement as to divided responsibility; that the answer to special issue No. 7 was consistent with the answer to No. 1, in that the defendant was partly responsible, and plaintiff was partly responsible and contributed to her own injuries, and they gave an answer consistent with the idea of divided responsibility. In trying to answer so as to carry out the agreement, he did not stultify himself.

From that of Mr. Roberts: They first agreed to give plaintiff something; they did not answer the first question in order to give her something; did not discuss what effect their answers would have as to her getting something; very little discussion was had on special issue No. 2; agreed on that from the beginning. They first divided on No. 3 and then voted "yes" unanimously; special issue No. 5 was answered "yes" from the beginning, and the jury agreed on No. 6. (This witness raised the question as to the effect of answering No. 7 "yes" that was referred to the court, as mentioned elsewhere.) Witness believed both parties were guilty of negligence; that plaintiff actually caused the accident by stepping on the creeper in the manner she did; and that the defendant was guilty of negligence in leaving the creeper on the floor.

In answer to the direct question, as to whether or not the jurors agreed to frame their answers so as to insure plaintiff getting $500, this juror testified:

"As to your question, whether or not there was an agreement reached then on the part of the jurors to give plaintiff something, and to so frame the answers as to insure that, I would say, `No, sir.' We tried to follow the issues as they were printed and according to the evidence."

This witness' attitude was that he thought both plaintiff and defendant were guilty of negligence, was in favor of awarding plaintiff $500 damages, but denied that there was any agreement to frame the answers to special issues.

From that of Mr. Burton: They were divided on special issue No. 1, and thereupon left questions Nos. 1 and 2 and answered Nos. 3, 4, and then down including No. 7, just as they were written; that they then tried to get an agreement on No. 1, and witness, who it seemed was opposed to a verdict in favor of plaintiff, said if they would let the answers stand, as previously voted, to questions 3, 4, 5, 6, and 7, he would come over and vote with them on No. 1. In regard to the question of an agreement to frame the answers, so as to insure a verdict in favor of the plaintiff, this witness said:

"No, sir; there never was at any time an agreement among the jurors to give the woman a verdict, and then, in order to carry out that agreement, to so frame the answers to the questions as to insure that result without regard to the answers the evidence required."

This evidence is plainly conflicting as to appellant's main contention — that is, that the jury agreed to allow plaintiff a recovery and framed their answers to insure that result. Jurors Roberts and Burton each deny that any such agreement existed, or that any such course was pursued. Other jurors, at places in their testimony, also deny that such a course was pursued, and whatever else jurors may have testified to, each and all said that, in answering special issues, they were guided by the evidence.

I therefore submit that this evidence is not only positively conflicting as to the existence, whether or not, of the material facts, but opposite conclusions of fact may be logically drawn therefrom. Article 2234, Revised Statutes 1925, commits to the discretion of the trial court exclusive authority to finally settle such conflicts, and, in my opinion, it can never be correctly said that a trial court abused its discretion when, as in this case, its decision is based on evidence conflicting on all material issues upon which reliance is based to show misconduct of the jury. That this is the undoubted meaning of the statute, is not only readily apparent from its reading, but is the construction given it in repeated decisions of our appellate courts.

In Kalteyer v. Mitchell, 102 Tex. 390, 393, 117 S.W. 792, 793 (132 Am. St. Rep. 889), Judge Gaines, dealing with a similar situation, had this to say:

"In regard to the question of the misconduct of the jury: One of the jurors, upon whose testimony it was proposed to get a new trial for misconduct of the jury, swore that it was agreed to take a vote, and that, as a majority should vote, so should be their verdict; that upon taking a ballot a majority voted for the defendants; and that by reason of such ballot a verdict was rendered for the defendants. Another juror, (there were but two examined) testified that when the jury retired they agreed to take a ballot, but declined to say that they agreed to be governed by the ballot; that the ballot was taken, and that they afterwards passed upon the special issues; but he again declined to say that any juror's vote was influenced by the ballot taken. The statute provides that `if the misconduct proven, or the testimony received, or the communication made be material, a new trial may in the discretion of the court be granted.' Laws 1905, p. 20, c. 18. We cannot say that the action of the court in refusing a new trial shows such an abuse of discretion as to authorize us to hold that it was error."

Chief Justice Rainey, speaking for this court in the case of Missouri, K. T. Ry. Co. v. Blalack (Tex.Civ.App.) 128 S.W. 706, 708, in disposing of a similar question, said:

"The statute (the one in question) authorizes a new trial for misconduct of the jury, if, upon examination in open court, the trial judge, in his discretion, is of the opinion it should be granted. This law subverts the doctrine of long standing that the affidavit of a juror would not be heard to impeach his verdict, but the lawmakers were wise enough to leave it to the discretion of the trial judge in granting a new trial. The trial judge in his discretion found that the conduct of the jury in the manner stated did not affect the verdict of the jury. The evidence, we think, supports this finding, and we are not disposed to interfere with the court's ruling. Foley v. Northrup, 105 S.W. 229,47 Tex. Civ. App. 277.

In San Antonio Traction Co. v. Cassanova (Tex.Civ.App.) 154 S.W. 1190,1192, Judge Fly disposed of a similar question as follows:

"Undoubtedly, under the provisions of the statute (the one involved here), the burden would rest upon the party seeking to impeach or discredit the verdict, and the judgment of the court on the testimony adduced must have the same force and effect as would his judgment in any other case on the facts; that is, if there is evidence to support it, it cannot be disturbed by an appellate court. The law places the discretion, as to sustaining or overruling the motion for a new trial on the grounds specified in the statute, in the trial court; and appellate courts have no authority to disturb the ruling thereon, unless it is apparent that there has been an abuse of such discretion. This construction of the statute was first announced by this court in Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S.W. 229, and it has been followed by other Courts of Civil Appeals and the Supreme Court. Missouri, K. T. Ry. v. Blalack (Tex.Civ.App.) 128 S.W. 706; Houston T. C. Ry. v. Gray (Tex.Civ.App.) 137 S.W. 731; Id., 105 Tex. 42,143 S.W. 606; Missouri, K. T. Railway v. Brown (Tex.Civ.App.)140 S.W. 1172."

Also, see Andrews v. York (Tex.Civ.App.) 192 S.W. 338, 340.

Trial courts must be permitted, in settling questions of conflict in the evidence, to see with their own eyes, hear with their own ears, make use of their own understanding, be guided by their own consciences, and pursue their own process of reasoning, else the discretion lodged with them by this statute will be a dead letter.

Jurors Alexander, Taylor, and Rice, from whose testimony the conclusions of the majority must find support, are in practical accord, but Mr. Taylor is probably more illuminating. His testimony is to the effect that, after more than a day's consultation, the, jury, on the morning of the third day, reached an oral agreement before their answers to special issues were written to this effect, that plaintiff and defendant both were guilty of negligence that contributed to the accident; that plaintiff was entitled to recover damages, and they sought to answer the questions consistently, so the verdict would reflect the oral agreement, that is, that both parties were guilty of negligence, and that plaintiff should recover $500; that they tried to answer so as to carry out the idea of a divided responsibility, and were guided solely by the evidence. This witness also said he would not have answered as he did if he had known the answers would have cut plaintiff off from recovery.

It also reasonably appears from the evidence that the delay in answering special issues was caused, not so much by a disagreement over the facts, as it was in regard to the legal effect of their answers; especially was this true with reference to their answer to special issue No. 7, in which they found plaintiff's negligence was the proximate cause of her injuries.

In carrying out the oral agreement as to divided responsibility, the jury made two findings, either one of which defeated plaintiff's right to recover; that is to say, in answering special issue No. 2, they found that defendant's negligence was not the proximate cause of plaintiff's injuries, thus acquitting him of actionable negligence. In answering special issues Nos. 5 and 7, they found plaintiff guilty of negligence that was the proximate cause of her injuries, thus convicting her of contributory negligence. Notwithstanding the jurors were friendly to the plaintiff, they felt constrained under their oaths to make these findings either of which defeated her right to recover.

It should not, in my opinion, be considered a strange or irregular procedure, or misconduct, for jurors, before answering special issues, to consult freely and reach general understandings, nor should the fact that jurors misapprehend the legal effect of their answers, or intend a different result from that reached by the court in rendering judgment, be denounced as misconduct. The function of the jury is to ascertain facts from the evidence, and this without regard to the legal effect of their answers.

From this testimony, the trial court could, and doubtless did, conclude that the answers to special issues were consistently made, based, as jurors testified they were, on the evidence, although, in harmony with the preliminary oral agreement to the effect that both parties were guilty of negligence and that plaintiff should recover $500 damages. For if, as jurors testified, they were guided by the evidence, as was their duty, the demands of the law were met, and the verdict was unobjectionable.

There is still another solution the trial court could have adopted that fully justified its action in overruling the motion for a new trial. The court could have held that the testimony of each juror, relied on by appellants to establish misconduct, was itself so inconsistent and conflicting as to justify its being disregarded as a guide to a correct conclusion. These jurors testified, in effect, that they first agreed to find something in plaintiff's favor, and framed their answers to that end; that they would not have answered as they did had they known the effect of their answers would be to defeat plaintiff. They further said that, in framing answers, they were guided solely by the evidence. This testimony is plainly susceptible of the construction of being inconsistent and conflicting; hence it could have been disregarded, by the trial court with perfect propriety.

In Easton v. Dudley, 78 Tex. 236, 240, 14 S.W. 583, 585, commenting on the probative value of testimony of the nature of that now under consideration, the Supreme Court used this language:

"The evidence is no guide to the truth. Had the contradictory statements been made by two witnesses, one contradicting the other, the rule that there exists evidence to support the finding of the court would apply; but these statements are made by the same witness, which make his testimony at least of little value — not enough to justify a reliable conclusion."

To the same effect see Ætna Ins. Co. v. Eastman (Tex.Civ.App.)72 S.W. 431.

If the doctrine is recognized that verdicts may be impeached by post-trial testimony of jurors, to the effect that they would not have answered the issues as they did had they known the legal effect, a door will be opened for the entrance of fraud and perjury, judgments will be unsettled, the administration of justice demoralized and rendered farcical. This evil was recognized early in our judicial history, and was denounced by our Supreme Court.

In Boetge v. Landa, 22 Tex. 105, 108, the Supreme Court, through Judge Bell, said:

"We cannot conceive that any but unworthy motives could influence a man to declare solemnly in open court, that he had assented to a verdict, and then to proclaim on the corners of the streets, that he had been intimidated and coerced into an assent to the verdict. The judge below ought not to have given audience to the affidavit of the juror under such circumstances, and might properly have punished his contemptuous trifling with the time and authority of the court."

While the law has been amended (since this decision) permitting jurors to testify on motions for new trial, yet the change in the law did not remove the corrupting tendency of such practice. The legal effect to be given findings of the jury is a question of law exclusively for the court. It was therefore immaterial what the jury intended or expected as a result from their answers. Their disappointment over the result, expressed after the trial, cannot be classified as misconduct, nor held a ground for new trial. This subject is, to my mind, of the greatest import to our jurisprudence. There has grown up, under the amendment of 1905, a regular practice of seeking new trials on alleged misconduct of jurors, supported exclusively by their testimony.

Prior to this amendment, jurors in civil cases were not permitted to impeach their verdicts. That this was the prevailing public policy on that subject is shown by repeated decisions of our Supreme Court, among others, the following: Campbell v. Skidmore, 1 Tex. 475; Mason v. Russell, 1 Tex. 721; Boetge v. Landa, 22 Tex. 105; Ellis v. Ponton,32 Tex. 435; Galveston, H. S. A. Ry. Co. v. Roberts (Tex.Civ.App.)91 S.W. 375.

The evil sought to be remedied by the amendment was evidently that at times jurors were guilty of misconduct and had received communications and evidence in an irregular way, under circumstances not susceptible of proof other than by the jurors themselves; hence the amendment was adopted to meet such cases as a means of protecting the rights of litigants from irreparable injury.

The language of caution employed by the Legislature in the amendment, to wit, "* * * and if the misconduct proven, or the testimony received, or the communication made, be material, a new trial may in the discretion of the court be granted," indicates that it is only when the matters involved are material that the statutes should be employed, and, further, that the question of granting or refusing new trials is committed to the sound discretion of the trial judge.

This change in the statute, subverting as it did old rules and precedents, was received with apprehension as to its results by the courts. This is evident from expressions found in early decisions thereunder. In Foley v. Northrup, 47 Tex. Civ. App. 277, 282, 105 S.W. 229,231, Judge Fly used this language:

"The mode of procedure allowed by the trial court is a novel one and one we fear that will be productive of no good results, but it is sanctioned by a law passed by the Twenty-Ninth Legislature (General Laws Texas 1905, p. 21, c. 18). * * * There is a clause in that law which sets aside ancient rules, and subverts precedents, but which gives the discretion to the trial judge to grant or refuse the new trial."

Again, in Kalteyer v. Mitchell (Tex.Civ.App.) 110 S.W. 462, this language was used:

"* * * The statute (General Laws 1905), which permits the dangerous practice of impeaching and destroying a verdict of a jury by testimony of members of the jury has a saving clause which places the granting of a new trial on the ground of misconduct of the jury in the discretion of the trial court, and this court will never interfere with the exercise of such discretion unless there appears a gross abuse of the same."

While the courts received this amendment with apprehension and dread as to future results, they found the saving clause in the act to be the provision that committed to the discretion of the trial judge the granting or refusing of a new trial thereunder. I am emphasizing the importance of this saving clause, for, unless it is respected, the practice rapidly growing up, of appellate courts lightly disregarding the exercise of this discretion by trial courts, will not only demoralize the administration of justice, but menace the right of trial by jury.

The authority most frequently cited by appellate courts, where cases are reversed because of misconduct of the jury, is Houston T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S.W. 606. Among other things, Judge Brown, who spoke for the Supreme Court in that case, said:

"If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside."

A careful reading of this case will disclose that the language quoted from Judge Brown is dictum, and for that reason it may not have been as carefully chosen as if the case had turned on that point. But, whatever else was in the mind of Judge Brown, it is not to be believed for a moment that so eminent a lawyer as he could have made the blunder of claiming for the Supreme Court any authority whatever to settle controverted issues of fact.

However, there has evolved from this language a doctrine that has been applied by the Commission of Appeals in a number of cases, notably in Southern Traction Co. v. Wilson, 254 S.W. 1104, and in Moore v. Ivy, 277 S.W. 106, as authority for reversing both the Courts of Civil Appeals and trial courts, on the facts. While I am convinced this criticism is just, it is not intended as in any sense a reflection on the legal ability of the splendid men who wrote the opinions in the cases or who participated in the decisions.

It is an axiom of our jurisprudence that the jurisdiction of the Supreme Court is limited to questions of law only; that it is not authorized to undertake the review of questions as to the existence of evidence to support findings, verdicts, and judgments, unless there is a reasonable doubt as to the existence, whether or not, of any evidence to support such findings, verdicts, and judgments. The jurisdictional boundary of our Supreme Court, as definitely fixed in the Constitution and statutes, should be maintained as steadfast as the hills, and should never become unstable as the waves.

If, by the employment of casuistry or refined reasoning, testimony of jurors, called as witnesses on motions for new trials, is lightly brushed aside, and findings of trial judges on controverted issues ignored, not only will the discretion to grant or refuse new trials, lodged with trial judges by the statute in question, be destroyed, but in the end our jury system itself will receive a serious blow. Jurors and trial judges are by no means infallible; being human, they are as prone to err in judgment as the sparks fly upward, but, by the test of an age-long experience, their judgment on the facts, because of a superior opportunity to learn and understand the facts, has proven the best means of attaining justice yet discovered.

For the reasons herein indicated, I am of the opinion the judgment of the trial court should have been affirmed.