The honorable Court of Civil Appeals (
Six of the jurors testified on the hearing of the motion for new trial. Two were not interrogated and gave no testimony on this issue. Three others testified that they heard no mention of attorney’s fees. It is upon the testimony of the jurors Bramlette and Jaynes that the insistance is made that such misconduct was shown as required the reversal ordеred by the Court of Civil Appeals.
The trial court in its charge specifically instructed the jury not to discuss or consider the question of attorney’s fees in their deliberation. The juror Jaynes testified that he did not hear any discussion or mention of attorney’s fees while the jury was deliberating Notwithstanding this fact, the defendant in error inquired into the secret mental processеs operating in the juror’s mind during his deliberation and he was permitted to testify, in effect, that he disregarded the charge of the court with reference to the consideration of attorney’s fees. On this subject he' testified:
“Q. Now, in the consideration of your verdict in this case, did you take into considera
“Q. Well, you did consider it in'your own mind? A. Yes, sir; a fellow would have to.
“Q. That would naturally cause you to give a larger amount to take care of it? A. Yes, sir.
“Q. And it did in this case, didn’t it? A. Yes, sir.”
“The question of attorney’s fees was not mentioned in the jury room, that I heard, and I didn’t mention it to anybody; I don’t know whether anybody else said anything about it or not. I cоuldn’t say what they said privately and individually because I didn’t discuss it with them. As I understood the charge, we were charged not to discuss the question of attorney’s fees, and I tried to reach a verdict under the charge as given, and finally agreed upon the verdict rendered in the case, and felt that it was fair compensation that the plaintiff was entitled to under the charge of the court. I felt that it would take that to compensate him for the condition he was in and the lack of ability to earn money, and the suffering he had gone through. I didn’t consider in my own mind any certain amount that I would give the plaintiff because he had to pay an attorney. I didn’t consider how much he would have to pay his attorney, because I didn’t know. I had no idea, and as far, as I am able to say, I couldn’t say that I allowed any specific amount for attorney’s fees. My idea was to compensate the plaintiff for the damages he had sustained, and as I said, I knew that the attorneys would get something; but I didn’t know the amount, or whether it had been paid after that. So far as I could, I excluded attorney’s fees from my consideration in arriving at the verdict, and the amount that I voted for was the amount that I thought was right after what the court permitted us to consider.”
The contention is made by plaintiff in error that, as no overt act of misconduct operated to cause the juror to give consideration outside of the elements of damage submitted in the court’s charge, the mental processes or reasonings by which the juror reached his verdict, however faulty, illogical, or improper, does not constitute misconduct within the contemplation of. article 2234, R. S. 1925, which expressly authorizes the court to hear evidence thereof from the jury in cases where the ground of the motion for new trial'is misconduct of the jury.
Prior to the еnactment of article 2234, it had been consistently held by the courts of this state that a juror could not be heard by affidavit or testimony to impeach his verdict. The statute was passed to modify this firmly fixed rule. We think the evident purpose of this statute was to permit jurors to testify with reference to some overt act of misconduct on the part of some member of the jury or a third person, and of such a nature as might be reasonably calculated to improperly influence some member of the jury in reaching a verdict. .
We are unable to bring ourselves to the view that it was contemplated by this enactment to permit jurors, after their verdict had been returned, to be subjected to an inquisition in order that it might be ascеrtained whether they disobeyed or misunderstood the charge of the court or misunderstood or misapplied the facts in evidence. To sanction such a construction of the statute would render verdicts of juries uncertain and of little valtfe, and the granting of new trials, instead of being the exception, would become the rule. The court would be comрelled to set any verdict aside when one juror could be procured who would testify that he did not obey the charge of the court or did not properly apply the law to the facts, as such testimony would be impossible of contradiction, .a. juror so testifying would not be subject to the pains and penalties of perjury. It is altogether probable that an average juror, if called several weeks after his verdict had been returned, when the charge of the court and the testimony had been dismissed from ,his mind, would be hard pressed to sustain himself against a charge of misconduct, when subjected to a vigorous examination by a skillful attorney in analyzing the mental processes and reasoning used by the juror in applying the law given in the charge of the court to the facts of the case. We can hardly imagine a more dangerous procedure than that which such practice would sanction. If such were the rule, verdicts of juries would indeed rest upon a most precarious basis.
With the exception of this ease, our Courts of Civil Appeals have uniformly refused tо sanction a construction of this statute which would permit such inquiry in the absence of proof of some overt act of misconduct. In the case of Texas Employers’ Ins. Ass’n v. Eubanks,
“A juror cannot impeach his verdict, and illogical reasons therefor are not misconduct. Ross v. West Texas Utilities Co. (Tex. Civ. App.)
In the case of Ellerd v. Ferguson (Tex. Civ. App.)
“It would be improper to allow jurors to impeach their verdict in this way. Crosbv v. Stevеns [Tex. Civ. App.]
A similar rule is announced in G., C. & S. F. R. Co. v. Moser et al. (Tex. Civ. App.)
“Appellant cannot impeach the verdict of the jury nor insist that they did not follow the court’s charge in arriving at their verdict without showing some misconduct of the jury under article 2021, R. S. 1911; article 2234, R. S. 1925. In the absеnce of such misconduct, the mental processes and calculations which guided the jurors,, under the court's charge, in arriving at their verdict, cannot be inquired into.”
In the case of Farrand v. H. & T. C. R. Co. (Tex. Civ. App.)
“The statute in question, although changing the rule as it exists at common law, as above indicated, does not permit a juryman, either by affidavit or by testimony in open court in support of a motion for а new trial, to say that the verdict returned by him on special issues, under his oath, and received by the court as his verdict, did not in fact reflect his convictions, but was rendered by him in the way it was because he did not know the meaning of an unambiguous charge, or did not know the legal effect -of the answers he made.”
A similar construction of the statute was given in the case оf Hermann v. Sehroeder (Tex. Civ. App.)
“We know of no law, either statutory or otherwise, which requires or authorizes the court tо make such inquiry of the jury as was requested in this case. The jury is presumed to be composed of men of ordinary intelligence, who understand the court’s charge. If such practice as here suggested were indulged in, it would soon become intolerable. There is no allegation or intimation' that the jury, or any member of the same, was guilty of misconduct. The jury, nor any member thereof, cannot impeach their verdict by stating, after they have rendered the same, that they did not understand a plain charge of the court.”
We are thoroughly in accord with the construction given the statute in the above eases. Trial courts should permit no inquiry into the mental processes or calculations of a juror in arriving at his verdict until such inquiry is made necessary to determine the effect on -a juror’s mind of some proven overt act of misconduct.
The testimony of the juror Jaynes being thus eliminated from consideration, the issue of misconduct of the jury must be determined alone from the testimony of the juror Bramlette. This juror was called as a witness by the defendant in error. He testified that during the deliberation of the jury somebody mentioned attorney’s fees, but that their attention was called-to the fact that the court had charged that no mention be made of this, and that it was not mentioned any more. He testified directly and positively that he did not consider attorney’s fees in arriving at his verdict; that he was trying to be governed by the charge, and did not concern himself over the question of attorney’s fees, and did not discuss it at all; that in making up his verdict he did not take into consideration whether or not the attorneys would share in it. After the juror had given this positive evidence he was confronted with an affidavit, which he admitted voluntarily executing, in which he had stated:
“The matters of attorney’s fees were mentioned—that is, the part the lawyers would get out of the amount we awarded as our verdict— but there was not much talk about it. However, I voted for $20,009, and in arriving at this amount, I naturally considered in my mind that the lawyers had to get part of it, and I made it larger than I would had I known the lawyers would not get any part of it. I didn’t talk that, but it was in my mind.”
Counsel for defendant in error earnestly insists that the testimony of this juror shows he was influenced in arriving at his verdict by the mention of attorney’s fees. This insistence loses sight of the fact that the only substantive evidence before the trial court was the direct and positive testimony of the juror that he was not so influenced. It is only in the juror’s affidavit, made prior to the hearing, that it is shown that the question of attorney’s fees in any way influenced his verdict. The rule is settlеd that proof of inconsistent statements of a witness can be introduced and considered only for the purpose of impeachment, and not as substantive evidence of the truth of the matters stated. 40 Cyc. p. 2764; G., H. & S. A. R. Co. v. Janert,
“Laeombe (the man who handled the dynamite) was called as a witness for the plaintiff аnd denied that he put the dynamite there at the time alleged. The plaintiff was then allowed to contradict the witness by using a deposition in which he testified that he did put it there at that time. The effect of the deposition as evidence was merely to destroy the contradicted statement. It was not positive evidence of the contradicting facts.”
The only effect the impeaching affidavit of the juror in this case could have had was
Conceding that the effect of the impeaching' evidence was to destroy the contradicted testimony given by the juror, then there was no evidence before the trial court аs to what effect the mention of attorney’s fees had on the juror in arriving at his verdict. The trial court under such a- view was called upon to determine whether a mere mention of attorney’s fees, followed by an immediate admonition of a juror that under the court’s charge it was improper to consider such fact, leaves the matter in doubt as to whеther the juror was improperly influenced. We think, under this view of the case, the trial court did not abuse the discretion vested in him in overruling the motion for new trial. G., H. & S. A. R. Co. v. Cook (Tex. Civ. App.)
The judgment of the trial court on this issue is clearly sustainable upon another ground. The juror Bramlette being contradicted upon a material portion of his testimony, the trial judge was authorized to deem such сontradiction as going to his credibility on all of his testimony (St. Louis, B. & M. R. Co. v. Price [Tex. Civ. App.]
It must be borne in mind that the trial court has the same latitude in passing upon the evidence offered on the hearing of a motion for new trial as to the credibility of the witnesses аnd of the weight to be given their testimony, as a jury has with reference to witnesses heard upon the original trial. When a witness is impeached upon a material portion of his testimony, a jury has the right to disbelieve his entire testimony. This is peculiarly within their province. The trial court in hearing testimony on a motion for a new trial has exactly the same privilege. H. & T. C. R. Co. v. Gray,
The dеfendant in error, having offered evidence tending to impeach the only witness who testified that any mention of attorney’s fees was made before the jury in their deliberation, is not in position to complain that the trial court gave full effect to such impeaching testimony and disbelieved the entire testimony of the juror. Inasmuch as we must take the most favorаble view of the evidence which the trial court was authorized to take, the presumption must be indulged that the trial court found that no mention of attorney’s fees was made before the jury.
The court of Civil Appeals seems to strongly rely upon the ease of Southern Traction Co. v. Wilson,
“What.does Moore say? It is true that, in. certain portions of his testimony before the court, he sajfs he considered the legitimate evidence and the charge of the- court ⅜ * * but he never does say that he did not consider the discussion about attorney’s fees also in' reaching his verdict. That is very significant. On the other hand, portions of his said testimony show rather clearly that he himself thought the improper discussion in the jury room may have influenced him to a certain extent.’.’
To sustain the рroposition that the juror’s testimony, independent of the impeaching affidavit, does show that he was influenced in reaching his verdict by attorney’s fees, Judge Powell quotes the following testimony given by the juror:
“I cannot say what effect that discussion (about attorney’s fees) had on me. Of course it was in my mind at the time, but I can’t say that it affected me to a great extent. It is * * * hard * * * for me to answer * * * whether it affected me or not at all.”
In this case, aside from the impeaching affidavit, there was no evidence that the juror
There being no complaint that the Court of Civil Appeals did not correctly decide the other assignments presented by defendant in error, we recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the triai court be affirmed.
Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.'