Estep v. Bratton

465' compensation conrt; “to fix lug but of the commissioners commissioners’ terra required by pay holding for all more than services of them law”— for no shall receive By Legislature per thing special that court determined the conrt month. term of the one by power of 1913 was such a the Acts without do law. amended Article Sayles’ Leg. (Acts Ann. 1261[Yern'on’s 33d c. Altgelt- In the of his in course 6901]), are constituted St. Case, Phillips Gutzeit Chief Justice said: supervisors public coun roads of their Legislature, passage “No doubt the ties, compensation for services their laws, may, proper local road within day pea.’ for such is fixed at three dollars bounds, provide compensation for extra duties, actually employed lim in time those performed by services to be those officials days in month. ited to not more than ten one by general where uncontrolled laws and re-’ By special (Loc. Sp.& act Section of this quired by directly laws and local con- 77) general Leg. laws are Acts 33d c. these public nected with the maintenance says superseded. declared as roads.” salary $2,400.00 for each commis annual sioner 'of Bexar Evidently, what the Chief Jus- County provided shall Legislature might tice meant was that per ‘in arid diem lieu fees of all other special impose or local law duties with payable here of all kinds now or that public imposed by reference to roads not by general simply law.’ This be allowed after general county commissioner, on law general for services their means that their special provide in such or local law for com- compensation longer limited shall be pensation, to the commissioner for the extra general law, shall as fixed this but required Legislature services of him. But the salary provided for, in other law. thus did not undertake to do that in the instant merely cover, words, was intended case, thing but undertook do instead to public with the services do Altgelt-Gutzeit the court determined in the Case it could not do—that required by act, but all serv roads as is, legislate up- “to required by law. what ices relation a local law of them Just subject [county of their commission- making provision for a general compensation ers’] or to alter county system road can have to general governing laws it.” subject compensation general of coun On Altgelt-Gutzeit ty commissioners, perceive.” it is difficult to 'Case, special we hold the act in special Legislature (Loc. In the act be unconstitutional. Leg. question here, Sp. 97) e. Laws 39th in bewill affirmed. county county each commissioner Wood supervisor “ex-officio declared to be road respective precinct.” of his commissioners’ act, part, Section of was as follows: supervisors road shall receive “Each said compensation inspecting, supervising for (No. 621.) ESTEP v. BRATTON et ux. repair, his work construction bridges, culverts, roads, Civil of Texas. maintenance of Eastland. Dec. required him and all other duties as such supervisor county precinct, road his Rehearing, On Jan. commissioner, day per sum $5.00 day engaged each he is so work as said supervisor, road but for more than 25 days month, paid out county third fund of the on order class court, and each of said road commissioners’ claim, oath, supervisors, his shall file under days showing the number each month actually engaged' in he has been that work, quired, report together with the herein re- approved by claim shall be court.” commissioners’ It was in section act [quoting! it should “be held that of all General Laws cumulative on this State sub- this ject, Act, when not with conflict this but of conflict this Act shall control as County.” Wood Legislature noted under- special law, took this the one county (the Supreme said), for Bexar plaintiffs, and that there little was some Afterwards, discussion of that matter. two who of award- had been favor ing damages $8,000 agreed in the sum

n theverdict that was aggre- jurors for the rendered gate $5,000.. amount of One of the two $3,000 who had favored verdict for testified by that he was influenced mention and attorneys’ discussion of fees. All of oth- jurors they er who claimed testified that jurors testify. not so influenced. not Two We will first consider the contention appellees presented by cross-assignments error, whereby urged that the trial overruling special excep in erred trial, tion to the motion for new and exception sufficiency which mo of the challenged, tion was because it was .“verified only by of one affidavit of defendant’s attor See, also, 298 S. W. neys (stating) allegations that therein Dallas, Bartlett, Thornton, knowledge & and Brown were true to the best of his and' Hayden, Abilene, appellant. belief, stating for Cox & without on which his the facts Abilene, Kirby, Overshiner, King for based, & Information and belief was with appellees. giving persons impart out the names of the information, stating said and further FUNDERBURK, jurors (affiant) Bratton J. Bunk ‘that the to whom had he Mary Bratton, wife, recovered talked with reference have re to the matter Estep against for dam- R. J. court below fused to make affidavits with reference there ages negligence failing safe- stating for to’ without the names of the excavating guard talked, of the identifying he in one a ditch was whom affiant had with the case on or them city trial, The amount stating streets of Abilene. or what infor Mary recovery they imparted Bratton and mation him.” The aggregate Bratton, proposition requires or an for Bunk assumes that the law $5,000. appealed. has The defendant that a motion for new trial based jury supported conduct of the be verified or sought reversed to have is by one or more affidavits. ground solely the trial court that granted a new trial because proper interpretation should have misconduct It seems to us that a jury. for new The motion relating of the statutes to new trials lead's misconduct, only necessary trial asserted several acts one of which was dence, the conclusion that is not that sufficient evi- motion for be new such as this verified. 2232, discussion. prescribes requi- R. S. certain misconduct, ground there was trial, among that sites of motion for them new jury’s during it was being “(2) writing deliberations signed that it Be party attorney,” “(3) Speci- the attor- stated one or more or his paid neys’ fy ground have to founded, fees would out each on which matter ground specified and that that amount of the not shall be considered.” openly writing specification discussed. From be in signed by attorney party or his state-' record does not contain a The implied seem to be that verification judge’s of fact ment of essential. not on the motion for from new trial. evidence heard requisites prescribes 2236 of mo- Article in overrul of the court judg- tion for a trial in ing imply new cases which motion must therefore be deemed to process finding against ment rendered on has been service the existence by publication only misconduct, where defendant has save acts several by attorney appeared person may of his own shown the uncontroverted such as prescribed requisites only One of the so selection. to the extent and that petition) (called “support- carefully the motion read the testi shown. greatly strengthens, mony, affidavit.” This eliminate ed conclude compel, controversy, the inference that verifi- does the uncontroverted it matters advisedly jury’s during omitted the re- deliber cation was evidence shows quirements prescribed they agree in article 2232. Arti- ations, an had reached “ * * * damages, it was cle commands ment as to the amount attorneys’ etc.] [as evidence shall hear fees would have mentioned that * * * jury open paid or others in from the out of the amount testimony, jury court,” or that received other can affidavits Under this statute etc. thereof the court shall hear evidence mat not be evidence of considered or others W. & R. Et. ters G. stated. Ratliff v. therein proved, 83; grant if such misconduct Ry. App.) a new (Tex. 245 S. W. Civ. Co. received, App.) (Tex. or tion eommunica-- Fox Co. Civ. v. H. T. O. ours.) made, (Italics This Valley 852; material.” v. Wichita S. W. Jones Revised statute 2021 of (Tex. was article Morales v. Civ. Statutes, being Hines difference 202 W. Cline article enacted Parry first W. 339. 227 S. “ *** that a new authorities, Appellees some have cited ,the (Ital- granted.” discretion of the court be support their con of which seem at least ours.) ics appears have been tention. affidavits construing leading statute purpose required, which was manifest originally & C. enacted is H. T. pro that the to to afford assurance the court Gray, The 143 S. W. 606. Tex. ponent probably to be able motion would of a more was “one or conduct that case support allegations by proof his mo the jurors ought plaintiff stated that the they purpose have tion. for that Even $50,000.00, have the to a verdict for because they required be ob been tained, where could lawyers get said: would half.” court The given. good If was a excuse very reprehensible “This was conduct.” required court, ex the press in a case where not holding, Supreme de so we think the Court summon wit mandate of statute to shown, and termined that misconduct was that same testimony in nesses and hear material within the terms motion should so refuse to do unless judgment the the statute. But trial the affidavit, of such the correctness Strangely enough, the court was affirmed. Had the court action we need not determine. approval having Su authorities the motion be in cause not to this refused hear the case preme requiring Court, which we ques properly verified, different us to the in this reverse is, might presented. the tion court The fact similar, very misconduct, though wherein the any testimony expressly other declined' to “reprehensible,” Gray less Case is cite the and, having verification, heard the authority. Gray Why? Because in Case the overruling jurors, the ex his action in the Judge by “If taken said: Brown the evidence ception appellees that we violated no judge reasonably the trial left doubtful Appellees upon called are able to to see. upon the the had to the statement effect affidavit, rebut, allegations in an not the jury, we would amount feel the verdict the motion, allegations to which in the tout the authority and set inclined exercise our to just complaint As be here. made Supreme mean aside.” did the Court What required all, fore, affidavit, if was for the at .beentak Should statement? it have court, who, by the benefit of the literally apparently en mean said? to what therefore, .complained of, it. We are waived hold that investigation us Our leads the conclusion to appellees’ cross-as constrained signments that, passing upon question as were we overruled. must be original matter, an would constrained reaching great difficulty had no have to hold not. that it should comparatively recent de- conclusion that j.ust previously announced court Supreme cisions, approved by expressly its conclusion that the “discretion” which the Opurt, require to hold the trial court us “ * * * judge statute vested the trial overruling new trial. erred in the motion for upon the same level with the discretion vest- greatly increasing of cases number many judge instances,” ed in from the trial coming this and other Civil Courts further “We followed the conclusion: Court, Appeals, Supreme is in- as the well is, Supreme [that Court] review its beset trial dicative of courts in difficulties which clearly appears exercise wherein it that the upon correctly passing deter- rights parties disregarded.” have been questions involving alleged mining miscon- (Italics ours.) recogniz- Here is a declaration juries. has been writ- duct After all that utterly a real that is inconsist- discretion subject, ten on seems to be sur- ent with declaration effect un- uncertainty prising amount of conflict and trial less the action of the court is correct be- controlling principles of law. Because yond doubt, a reasonable its this, carefully we have reviewed the au- Why Supreme be reversed. Court satisfy an thorities in endeavor ourselves reversing thé affirm The instead of it? existing or as to the cause certainties, regarded causes of the un- question only to that answer which the “ determine what * * * gave Supreme was: Court But definitely settled. judge who tried the case seems to have fairly provides: promptly investiga- R. S. now “Where acted ground tion, he of the motion is misconduct know that could form safer charge ewamming them, officerin or of the or conclusions than from any because of communication made to the this court can record. There is from ings looMng as to the of miscon- the man who effect at much testifies.” Court, binding Supreme ours.) (Italics duct would be clearly wrong, unless one fruitful source ,us enough Su- seems clear confusion would have been avoided. We refer preme independent judgment propose substitute did not constantly recurring for that of the duty pass upon whose function and ease, particular announced court in the ap- witnesses so, do where the rule that it peared (cid:127)given testimony, which tends'to show found from the evidence prejudicial the effect or mis- want of effect of trial court the action of the of, conduct. Decisions the Commission clearly subsequent wrong. But the Appeals expressly approved by Supreme Supreme approved controlling Court which susceptible “If we consider are not controlling that: statement effect to the any interpretation judge left the evidence taken reasonably recognize the state- doubtful as to the findings fact, conflicting make mony, verdict of testi- to amount of the ment had required jury, evidence that to exercise we would feel inclined weighed regarding Parker v. the effect of it aside.” our and set higher Bailey (Tex. is in that court. This is sense clearly Parry (Tex. shown in eases & N. O. T. v. Ivey 997; Payne Case, Com. as the Harris Case the Wilson where- in terest of of very Traction Co. in- Southern conflicts 241 W. 1104; (Tex. App.) requiring weight W. 254 S. the v. Wilson Com. Ivey (Tex. App.) testimony judged gives 106. their 277 S. W. rise Moore v. Com. to the doubt held to a reversal. many others that hold These certainly recognition view is of inconsistent with ease, if, shown, fusing given misconduct be in a material power binding in the trial court to make trial in re- of the the findings which, course, of could not reversed, exist motion for new trial a judge the bility of absence of the credi- the clearly appears from the entire it so unless weight of witnesses the of evidence. record, evidence, including the mis- the that prej- did verdict to conduct udice of not affect the the following deduce the decisions the preclude complaining party propositions: the ap- any reasonable in the mind of the doubt tending First. As to the evidence pellate appellate substitutes court. alleged show the of existence or not miscon judgment completely its that the duct, duty it is the of the trial testimony judge hears court. The trial the judge pass upon credibility the of witnesses witnesses; or other he looks at weight given testimony and the to be the doing ; prerog- them while so he exercises his facts, findings binding to find the are pass the wit- ative to the upon by the Court Civil if given nesses and to be to the tes- the and are sufficient timony. He al- the conclusion reaches Supreme supported by any the evi though terial, ma- the and was misconduct occurred Louis, Ry. dence. St. & M. B. Co. v. Cole of the same did not affect the verdict (Tex. App.) S.W.(2d)1024; Bradley Com. 14 v. prejudice complainant, the Ry. (Tex. App.) S.W.(2d) T. & P. Co. Com. 1 appeal, higher overrules the motion. On the 861; Ry. Harvey (Tex. Gulf C. & F.S. Co. v. instances, very con- in some looks App.) ; Com. W. 276 S. 895 San Antonio Pub give the rise to doubt flicts which (Tex. App.) lic Service Co. v. Alexander Com. requires a reversal. that course 280 S. W. 753. any wholly unable see semblance true “discretion” Second. Whether or not misconduct Recognition judge. of the fact that found to have occurred be material or question was ex- had eliminated “discretion” appear decisions pressed by Judge My of law. Some decisions Tyson (Tex. regarded v. Giles have the word “material” as used very App.) per- S.W.(2d) Civ. 13 452. was the statute to have reference to the effect of suggested tinently that such was the notably opin reason misconduct. This is true of the Legislature, adopting the utes of the Revised Stat- Ry. ions in Simmonds v. B. St. Louis & M. Co. ques- (Tex. App.) omitted the statute 845; S.W.(2d) Civ. 18 Internation “may” Ry. Cooper “in the The word (Tex. tion discretion.” App.) N. v. al-G. Co. Com. meaning already, affect, S.W.(2d)578; M., been treated as Ry. 1 and Parks K. v. & T. By change (Tex. reason stat- App.) “shall.” S.W.(2d) Co. Civ. 19 373. But we ute, question reasoning would now be serious it think the better is to judge, even discretion is confided to the trial the effect that “material” has reference to the proper recognized in- if it were terpretation “tending now nature misconduct as or cal Gray opinion in the Case injure rights” parties culated to recognition of real discretion. litigant. showed a San Antonio Public Service Co. v. (Tex. App.) 753; Gray Alexander Com. Case been in- Had the (Tex. App.) Bailey S.W.(2d) holding terpreted Parker v. Com. 15 the trial court’s find- 470 regarded Parry Ry. (Tex. as evidence evidence was the existence evidence has 1033; O. & N. Texas simply misconduct, (2d) and not 997; Abrams v. Brad App.) 12 S.W. Com. latter, effect, S.W.(2d) App.) to which (Tex. Giles shaw v. Civ. already out, Supreme pointed Tyson App.) (Tex. findings did not ju- many things that conceivable binding. court as during would would deliberations ries be a do course, Of here misconduct, not for us to determine species but which question involved, but, essentially im- if we a the there material because not be agine flagrant prejudice ma- case where there is likely calculated to nature shown, dur- terial if it occurred misconduct parties. rights of the say jury’s deliberations, ten is shown misconduct Third. If material jurors testify convincingly positively the that pro occurred, entire evidence but the was-agreed it occurred before verdict tending to show that trial court duced to, afterwards, testify positively and two occurred prejudice affect the verdict did not it of hypothesis holding finding of every complainant reasonable excludes trial court no misconduct is effect; then have such certainly conclusive would be in conflict with overruling a trial court spirit of the decisions hereinbefore men- permitted to will be motion for new thereupon, tioned. There would Cooper Ry. Co. v. N. stand. International-G. seem, very whether arise substantial doubt S.W.(2d) (Tex. L. B. St. the misconduct had affected verdict. 14 S.W. M. Co. Cole Ivey, juror posi (2d) 1024; In Moore v. L. B. &M. v. St. Simmonds tively very ques contradicted on others tion of whether misconduct oc Repeating in this connection Fourth. curred before or after a answered, issue was material completeness: to evidence As sake of for the disposed and that tending the effect to show necessary by the declaration it was not (as prejudicial of same dis the want tinguished misconduct), certainties, to deal in the real but that test existence from evidence was whether or not a arose. It doubt occurs findings nor of fact neither that, jury reports verdict, to us until a and judge are therefrom thereby same, loses control over it is material appellate upon As a nec courts. attorneys’ fees, misconduct to discuss insur corollary: essary not the It is ance, etc., juror any one since influenced judge, to deterinine as to ti-ial the the evidence. thereby has the recall his assent to to nor witnesses verdict,, thereby the would seem us recall verdict. It under authorities cited See logical to more to evi previous discussion. dence as to whether mis or not acts of uncertainty in law element Another conduct occurred was before after the verdict distinguish properly failure to arises from a between agreed to, but while within still the to show the ''mis as the existence to evidence jury’s control, going as evidence mis to the and evidence conduct probable effect of the rather than L. W. manifest in St. This is conduct. evidence to its existence or not. Lewis this-case, arewe exercise whether was involved There the independent judgment, our controlled overruling and in no sense going whether the to show evidence the action of court jury had or after the conduct occurred agreed trial, the motion for we new verdict, ver but before the say upon unable to the whole record that be court, reported was to re was dict yond a reasonable doubt the mention and dis showing garded existence as evidence jury attorneys’ cussion not influence jurors fees did Appeals re Givil Oourt misconduct. garded some one or more assent of going to show evidence evidence Ope returned. verdict was misconduct, and, con or not of the existence struing ing agreed juror, although testifying thought -that he testimony juror show just, verdict was correct and testified that he the verdict after was occurred was of mention and discussion influenced finding to, of the trial held attorneys’ juror, fees. This same after conflicting testimony judge upon agreed $3,000, favored the verdict for course, correct, This, binding. of construed $5,000. upon ap one for The burden was to pellees properly the evidence and every evidence reason to exclude regarded testimony testi as to the harmful effect of the mis able doubt conduct

mony going the existence of miscon show The Commission its effect. rather than duct n Appeals W. of one of St. Louis S. construed Beaumont, (2d) 146, raising Smithhart, juror' (King) conflict, 9 S.W. as not directly Appeals, regarded was not the' of Civil therefore trial court’s correctly court, decision, appellate point. binding entially infer thus lending interpreted herein- and followed the sanction the view aboye bold, compelled Co. v. Whitenaek We are discussed. decisions, reluctantly, tbe under ratber upon appellees met. tbe burden cast rehearing Tbe motion for is therefore granted. $2,000 Tbe offer remittitur- of tbe trial court judgment of tbe error Because accepted. refusing trial, Tbe of tbe trial a new tbe provide a re- will be reformed so remanded. tbe cause reversed and covery favor Bunk $600 awarded Mary $2,400 Brat- Bratton favor Rebearing. On affirmed, ton, and, as reformed so will be rebearing, Appellees, by accordingly motion for ordered. so earnestly persuasively insisted reversing tbe case because in error in were misconduct of tbe jury. given care- We have motion, have not but ful consideration that, upon as we tbe record been convinced passed et al. v. UNKNOWN HEIRS BROWNING’S upon it, other make we should 3802.) (No. BUTTRAM et al. appeal. disposition of tbe Texas. Texarkana. Court of Civil set that we should Alternative to the claim 23, 1930. Jan. affirm tbe our former aside case, appellees sum remit the have offered to judgment, upon $2,000 condition tbe aside tbe be set order of reversal tbe recovery provide reformed to judgment of $3,000, being tbe amount remittitur, as so less tbe judgment. reformed affirm dispute that, shows without The evidence alleged misconduct of tbe oc- tbe time at curred, agreed tbe issues bad of tbe the amount save jurors- tbe several amount which tbe ranged awarding from a favor $3,000 up, of tbe tbe amount minimum of apportioned being $5,000, judgment rendered Mary to Bunk Bratton and tbe re- includes Tbe offer to remit Bratton.’ apportionment. quest make a like original Our as tbe inability disclose, based our will say beyond tbe mis a reasonable doubt any degree, not, influence tbe conduct verdict. Tbe deliberations, jury, in their minutes. Tbe record out 30 or 40 suggestion miscon carries possibly ver influenced tbe duct could add further than to dict tbe amount it. We have no doubt possible making in tbe will be rendered misconduct fluence of tbe tanta bold would be To otherwise harmless. bolding once misconduct mount be harm it can be held to to exist never shown recog Many respectable decisions less. nize that harmless exist render facts jury, misconduct of tbe material authority, and, upon rea as well as tbe supported, soning being made, tbe remittitur tbe requested. See affirmed as Employers’ Texas Ins. Co. v. Electric R. Texas Ass’n S.W.(2d) 185; Inter Cooper (Tex. N. national-G. Dover Steele El Paso Elec.

Case Details

Case Name: Estep v. Bratton

Court Name: Court of Appeals of Texas

Date Published: Dec 6, 1929

Citation: 24 S.W.2d 465

Docket Number: No. 621.

Court Abbreviation: Tex. App.