*1 241 SOUTHWESTERN REPORTER by 12, 257; these jury and divided Sydnor, were added Rhodes v. Menard v. quo- a than less at 432; Gibbs, Proctor et v. 39 Tex. Shaw al. obtained, and there evidence tient thus 1105; v. Aiken quo- they abide such had not to Bridgeport Nat. Bank First App.) tient, and that were not influenced there- v. Shannon Childers deny- by, error in not to reversible show held Spear on 202 W. ing new trial. Ed.) Rights (2d 458. § Marital <3=44(2) jurymen 6. New trial —Statements introduced evidence There is some derogatory require a held to witness awas D. A. Beshears that Mrs. tends to show setting aside verdict. making contract time feme sole company against In an action a traction which, suit, it had if' time of the and derogatory injuries, juror’s statements for one may pleading, af- have disclosed been regard eyewitnesses, a made in the attempted liability. fected her introduced, to be but exclud- matter the evidence inclined are also We objection, error not such material ed on held against judgment a sustain sufficient dis- as to make denial of new trial abuse of may being tes- cretion, be As there A. Beshears. P. plead- previously plain- appellee arrived at the conclusion that timony and available recover, and not hav- tiff should such witness intro- ings may and so amended damages. to the testified as against recovery all the justify a duced to is set court trial parties, aside, <3=44(4) juryman’s 7. New trial —Whether remand- and is reversed the cause going place accident, misconduct trial. new ed trial of court. new is in discretion company against In an action a traction injuries, jurymen, that one of the while separated, went to scene of the place, taking no accident and looked over the measurements,- he stated that he was where SOUTHERN TRACTION CO. WILSON* entirely of witness- 5603.) (No. es and that what he saw at reaching a Appeals him in Austin. no influence on Texas. accident verdict, the trial court (Court Civil held, Rehearing it was in the 22, Denied 1922. March 1922.) 19, to conclude April misconduct was not material. (3) Appeal error <3=978 1. —Discretion <3=44(3) Refusing 8. New trial new trial jury’s — aside verdict trial discussion, jurors’ deliberating when on dam- subject to review. misconduct ages, attorneys’ fees held as to amount court, under Rev. trial The discretion not error. a verdict for set aside art. St. grant review, Court’s refusal to defendant new jury is misconduct jurors’ discussion, rights trial because of liberating probable while de- clearly on amount of as to disregarded, and, evi- parties dence effect of if the would receive as to doubtful leaves not an abuse of discretion. held amount of the ver- appellate it aside. dict, should set court Appeal <3=837(8) error 9. trial <3= —New 157—That misconduct of affected <3=1015(2) -Findings dam- on Appeal 2. — ages complaint may was made of which conflicting are conclusive. by appellate considered trial court and conflicting In case determining whether denial of new trial motion new on- the trial proper. trial was conclusive. plaintiff damages against Where recovered <3=140(1) attached New trial injuries, 3. company for hut did not com- —Affidavits traction evidence. aré not plain motions excessiveness of new court, trial, to a motion for _ attached Affidavits on motion for could consider pleadings, perhaps proper affecting damages while misconduct of termining in de- not evidence. whether maternal error had been justify denial committed and conduct in as to of new <3=140(1) upon New mover 4. —Burden appellate court could such mis- consider injury jury’s misconduct. to show whether trial court’s proof party, al- The burden of regardless discretion was abused of whether leging on motion for complained misconduct could be of as error. injury. trial, to show Rehearing. On <3=143(5) ju- as to 5. New —Evidence Appeal to quotient <3=832(6) Appellant ror’s misconduct as verdict held and error — complain reversible error. to show on failure to decide un- damage defensively presented action affidavits In showing appeal by appellee. after the their negligent presented Wher,e defendant en- voted «matter defensive- recover, put paper ly appeal by appellee, appellant, titled to mo- vote, complain rehearing, for which each amounts and that tion for cannot of refusal Digests topic other cases see same Key-Numbered KEY-NUMBER all ®=ITor Indexea granted . May 24, *Writ of error 1922 *2 Tex.) SOUTHERN TRACTION CO. v. WILSON 637 (241 S.W.) appellate an sustained, court deems to decide what cause re- unnecessary question. appel- here for manded our determination of assignment lant’s 21st of error and <§=o44(I)— gives court New trial Statute 11. propositions thereunder. jury’s mis- whether discretion to determine assignment setting complains requires The-21st aside of conduct verdict. 2021, providing following par- 1911, misconduct ticulars: damages by in Rev. art. Under St. inquiry motion (a) of a for for The arrival oth- new trial is misconduct of the or lot; (b) misconduct of one of the reason, and that: “If er similar the miscon- jurors, visiting place in of the accident proven, received, duct or the during trial of with a view material, a communication made be new mind; question in some may, court, grant- of the (c) respect in in discussion room ed,” gives a sound de- the court discretion to appellant, to a material witness for material, termine whether such misconduct was, jurors effect, requires that some of the stat- such aside of the years, had, verdict. ed that such witness in former reformatory; (d) sent his son to own 14)9(3)— <§=» New trial Facts held to war- jury, by discussion and consideration finding visiting rant scene of acci- jury, some of the of the of attor- probably dent not influenced ob- ney’s fees, which influenced at least one of servations. jurors agree larger to a against company In an action a traction for agreed injuries, to. than he would otherwise have facts in evidence held warrant finding juror, guilty grounds miscon- who was These were contained in the visiting scene of the dur- trial, sup- duct accident for a motion new amended not influenced jurors. ported by hearing On the affidavits four the observations made. motion, tes- these four < n =>44(3) tified, open court. In addition to their 13. New trial —Misconduct attorneys’ testimony, agreed fixing discussing all it was the other fees in damage verdict held not material. were not in- damage action, In a where had vot- fluenced statements and misconduct $7,500 damages for and the ed torney’s of at- motion, contained in the need day discussed, fees was and the next placed on not be the witness stand. verdict for that fees held law, [1] The rules relevant cor the mention or discussion of the questions disposition of rect raised in may impropriety, regarded thought assignment such to be as fol improper conduct, but was with- not material lows: The discretion meaning 1911, pro- vested 2021, St. Rev. art. (article 2021, viding 'the statute Revised' for trial in the court’s discretion. Statutes, 1911), to set a verdict aside Appeal Court, jury, arbitrary from District McLennan is not misconduct one, County; McCullough, Judge. Tom L. when it clear review parties ly rights against Action A. J. Wilson the South- disregarded. If the evidence tak Company. judgment Traction ern A leaves the- trial en doubtful as upon reversed, plaintiff was re- and the cause misconduct had to the effect the Appeals (187 manded the Court of Civil of the verdict of the the amount plaintiff brought 536), and W, S. error to the appellate exercise au court should its Supreme Court, judgment which reversed the aside, thority set Great deference Appeals (234 Court of Civil W. S. should be shown the conclusions of the 663), and the cause remanded for determina- judge, has trial him, who the witnesses before assignment up- of an tion of error not ruled position is in a to form safer Appeals on. Decision the Court of Civil examining conclusions from than Judgment remand. of district court appellate court can from the record.' the Houston affirmed, rehearing motion for overruled. Gray, R. & Tex. Central Co. v. 105 Spell Harris, 43, W. E. & and Sanford all of W. 606. Waco, Beall, Templeton, conflicting & Williams [2] In ease Callaway, Dallas, appellant. the trial court are conclusive. Black, Austin, appellee. 390, Kalteyer Mitchell, Chas. L. 102 Tex. 117 v. S. W. Rep. 889; Ry., An Am. Co. v. 132 St. BRADY, (Tex. App.) J. The 206 W. Com. S. Lbr. Co. drews opinion reported 823; Ry. (Tex. App.) indicated W. S. 187 Co. v. Smithers Civ. Supreme Court, State, reversed Benevides v. 57 Tex. 663, upon principal question 170, 121 S. W. 234 S. R. Andrews v. Cr. York (Tex. 338; Ry. whether a is entitled recover S. W. injuries 539; Camp in a peril, case of not- discovered 214 W. Cook withstanding negli- contributory his own Campbell App.) 215 bell v. S. W. gence. respects, In other the decision of this 134 . Digests same topic other cases see Key-Numbered Indexes KEY-NUMBER in all 4S=»For ,(Tex. REPORTER SOUTHWESTERN ¾38 conduct which was was evidence in claim The evidence views. several will Civ. recover before Little jurors gested son and sent tiff was entitled verdict also agree was witness of he would gether, and ings, about Mr. tify result the discussions knew that by appellant, should be added dence such setting appears amount, this witness did jury in Civ. statement discussion derogatory (Tex. effect sustained. [5] [3,4] [7] It paper proof the conclusion advance to verdict, the conclusion first App.) guilty App.) slightly in this circumstance justified showing Passing we hold Considering in this material Civ. to abide that the Civ. that one more took in a verdict was done. had that Affidavits being There returning grounds to the jurors examine room, the was Little’s 142 S. not influenced App.) stated Judge App.) while 146 vote, All the evidence voted that the place. each which bringing show respect. in fact one or more amount of evidence. negligence, it that virtually by that by any being ample Mr. discloses verdict that accident, and was introduced error as had be bound 227 S. is to W. also that one 227 S. W. juror put concluding excess $13,550. the truth Yantis, a verdict. The trial court case the result perhaps and that the the having attached was next injury. Hines v. discussion the It that Kittle, aside. some recover, to the testify in *3 1005; Ry. the already and they he or matter appears objection was consideration of certain 670; lot finally jury 339.W. this conduct did quotient that, Ry. Kelley party thereby damages and prosecuted divided warranted kept did jurors was there 'is evidence jurors There nor influence proper traction'company arrived at down to motion evidence to reformatory. stated, Hines v had compromise $15,400. There attorney these amounts is to involved that the concerning relation to the not do determined did after all from the in no alleging was an influence did thereto alleged, we The Wells believed in asked it not arrived nearer during statements on a mind juror sug it reversible not ever resulting reaching state, his own him in twelve, so, burden by lot. should Parry, in plead which plain Parry piece effect mis that that dur vote eye jus the Mr. evi the the to plaintiff at It shown to have material. the was within would pudiated this was pears others he to conclude that part in to the was or would thereby the witnesses running speed, amount of ed, connection titude of ages satisfy myself, there attorney’s receive 25 juror’s suggested voted, time to have the clear age the this stated showing fied cident had the as to the ever, to the other ed the while the “I went He [8] general knowledge like concluded wide any way exhibit most serious verdict, ranging slightest record shows that fact that what suits are collision. influenced merely This consideration of accident he was influenced took that, was the to have made Moreover, in his own chief he could have seen the as near as I could tell about reason for one-half of the in should that the statements of the divergence the witness $13,550 effect of the up no per cent., that arises from the sound discretion to the damages reaching brings no rebuked fees the counsel for $7,500 a matter and being influenced. Our stating in there to see difficulty measurements, that, from jurors, and he car stopped usually paid affidavit and would not mention or discussion what recovery. he saw communicated his entirely happened. sorter.” influence However, thereby, recover, agreeing receive. it was shown went that he did not consider that he was not the motion, phase at a reasonable going this misconduct was not if the motorman had language: us to a for which about that, reason of the discussion the amount of the others a attorneys Moore. that stand. the car and stand at the that every juror affidavit, separated, and we think was to recovery. However, of this issue. on him in what opinion There is evidence Some it in which had $7,500 have had It was attorneys on the basis of a the scene should the raising but any consideration of the while there was scene positively This There third, voted to be a m&tter the juror of the would testified that virtually verdict. He observations improper. fees. How- of this wit- attached as plaintiff and one place look- trial court discussing influenced prevented originally of the juror ap- he stated it, and the difficulty reaching at noon testified, that was rate of of plaintiff and at- award receive is not it just where jurors admit likely testi- dam dam- It still ver not ac- re- be in to it .was, here, any amount of the verdict. upon nied looking pression ground reported in 137 S. evidence, and constrained to duct, court, reversible error. The This court held that shown to from the promptly we know unable to conclude that effect the from there was for one of the the man who er verdict. previously given all the ness has been mony, compromise favored evidence that, it statement of the our who testimony: to the tively answer as should time, stated Gray, supra: ah.” great such a material Tex.) “I cannot “If the evidence The There is reasonably me. .opinion authority permitted neither in a writ examining as Counsel tried *4 if in his extent. testified calls attention to the fact jury, by Gray he stated get he. traction facts left at, trial Of on the would have record. that he could form safer I the conclusions of the trial Chief complaint ground alleged one-half cannot upholding as far as he say However, it the case seems to we would feel finally reaching course, above referred to. of view Case In other the trial court has been shown. judgment,' judge and set the deference which should be testifies.” fairly in It upon doubtful due hold to consider tbe affidavits as on that he was what the court others, tbe Justice company, error, writing that plausibility in There is much in an affidavit taken appellee, say larger amount. As was misconduct bad to these statements himself was that the amount of the knew that record, effect hard supported with those it affected me or the action of the verdict that it affected portions decided this was but an ex- for what was recovered. as that no abuse Brown, and it Supreme must appellee’s attorneys SOUTHERN aside; was Therefore, below, did hot constitute than this court doubtful as to tbe to inclined to exercise that discussion the trial $50,000 damages, investigation, testified, phase then the concerned, by my very favorable be remembered this the effect verdict that but the uncertain on of his The verdict nor is there matter was Considering mind- have acted was much Court de- conclusions this Ry. additional a miscon- looking rehearing in the motion for new argument judge left we mé to a we we TRACTION CO. by verdict finally before to determine whether judge, is ex- not at Power & taken court, me to testi larg posi that who .and of the unusual feel had i.W.) (241 the in can pass upon most careful mined in in plained appellant entitled under it bad no been done.. discussion. This court whether the dict as necessary. directed this was matter App.) the trial the verdict. relation to Traction Co. v. Dillon convinced Court, material as to ness of a failure to sel acts of misconduct are firmed question, W. 698. complaining dict, not in we discretion rehearing, to decide Tbe port circumstances, eessive, Affirmed. Counsel for We have [10] We do not effect, overruling consider, tbe do think alleged alleged 8 S. W. would cut of this view. following shown, 216 S. W. In right the tests appellee, liability, and that no reversible error any of all excessive, v. WILSON whether the failure to attention, judge primarily to the amount of to consideration assignment Light that ask us to sustain given resulting injury We did indicate our misconduct of the Tbe effect presented of the excessiveness of the ver trial event misconduct. The find tbe motion. The matters com- Regardless this was a matter within the the tbe consideration, Moore. precluded believe occurred original opinion, .question, On contending authorities are cited in appellant whether material question. our conclusions are require how we do not see features recognized by court abused bis discretion it trial we proper Ry. Rehearing. exercise appellee’s present urged alleged appellant, Am. St. relating questions of the character under it Electric Co. v. think defensively Nevertheless, complain of our Co. v. the misconduct claimed, squarely court to Edwards simply declining because deemed un proper off from trial with the discretion to which we have of the conclusive- that, Inasmuch as this necessarily that to vitiate the ver damages. reversible error. Rep. to the affidavit because several appellee’s Boozer, contention that holding should be complaining in motion for or on to decide discussed our statute it is at least assign error, prejudice under we declined and because of the ver- determining consider, 615; decide injury relying trial view discretion, appellant Southern say Supreme aside because we are correct, appeal, Pearce, is that having appeal relate, Dallas deter- coun- these could is so vests that sup- this 633 up af- (Tes, REPORTE®' 241 SOUTHWESTERN
looked We decline degree; (b) that, we deem but, ors, during abused. have seen the stopped hut dent car we revised these we leave mined. scene tional some that this discretion received, terial, if could there discretion utes, not assent lar cant conduct the tion is tion although statute the “If the misconduct Here [11] Counsel misconduct has been effect, correctly fact reasons, at a reasonable rate of argument. language: if extent, comply. complain of the accident to see what specific a be findings We are asked to make like and to itself seem deference the car and only is material vested or the granted.” decided court, who visited the scene of the acci expressly statutory part controls, aside of the verdict. We motorman unnecessary to make the but concludes with directly stated the law when we determine even if misconduct findings: this view. The also insist to review there is trial of the Article communication fact, with may, our refusal to to furnish a satisfy proven, or the already prevented provides and, counsel, shown to have so in the discretion of there was we said As to the conduct of had been trial court shown question; therefore, (a) deciding; whether such that this court above, think finding which we originally himself judge. One of the sufficiently speed, time such, arbitrary Revised recognition or other terms made be certain addi sum. refutation of this our decide and will running misconduct, visited the will concluded and found testimony collision. he could to have to some We can requires company findings the mo inquiry proven, will, signifi discre deter- view sound make what think Stat simi full, said which this Motion has, mis- furnished one, ma- ju- by to affidavit was pears before the ney’s probably was not influenced those presents ing tions., matter rectly. fees, but his was not considered was vations thus tify ute. As to give consented that he attorney’s tached that reference fluence be not contradicted give $7,500 the return of the states that agreeing Believing [13] We further find that the [14] it. regarded from the reason material within the $13,550. read fees stated in As heretofore We further find contrary These is stated him reference to the motion for wanted the bill of with an overruled. the first about fees was fees and to a verdict stated occurred, substance of the discussion mention or discussion of next attorney’s ground warranting Mr. Moore make made; original not substantially juror Moore, finding. improper conduct, $7,500, as his day the motion for mention or discussion any time Moore had provide affidavit, opinion. but, influenced exception. of his found, however, for more than fees attorney’s we conclude are in addition more impropriety was sufficient to evidence, although judge. meaning except he would for original opinion cor made We do expenses, *5 directly did or did for Mr. returning more repudiated four we further specific influenced in such observa- for the fact juror Moore juror Moore, is overruled. us in reced- voted; the traction to a contrary, of the stat his mind fees< stand, days than that rehearing fully Wilson’s affidavit deem it that he thought a arose, obser- attor ver jus find this ap at in