*1 STRANGE, Petitioner, Roy CITY, Respondent.
TREASURE
No. B-9133. Texas.
Supreme Court of
Sept. 1980. Rehearing Oct. *2 for the defendant’s motion
court overruled acts of new trial on several re- appeals of civil misconduct. The court court the trial versed the trial; a hold- cause for new remanded the alleged of misconduct ing acts had denied occur, the misconduct 816. a fair trial. the defendant the court judgment of We reverse appeals civil and affirm сourt. trial dam- City for Treasure Roy Strange sued inci- ages imprisonment. to due false imprison- false alleged to have been dent shop- Strange was while Mr. ment occurred store. The City ping in the Treasure did not have City (1) that: found (2) Strange; to Mr. cause detain reasonable anguish, hu- Strange mental suffered reputation to his damage miliation and (3) $1,500.00; City’s the amount of malice; (4) Treasure employees acted with $7,000.00 exemplary dam- pay should ages.1 judgment on the trial court rendered a motion filed
jury verdict. Treasure jury misconduct. alleging for new trial hearing at which a on the motion There was concerning the deliber- four jurors testified hearing, trial court ations. After the new for City’s motion overruled Treasure trial. civil appeal, the court of testimony established jurors’
found that the
(1) a dis-
misconduct:
following
acts of
cussion of whether an
(2) a discussion
pay any judgment;
attorney would
of whether the
any money awarded
one-third of
receive
fee;
of wheth-
(3) discussion
contingent
a
a
Cochran, Dallas,
petitioner.
H.
for
Jоhn
pay
required
be
plaintiff would
er the
Kaufman,
M. Kaufman
Stanley
Oster &
(4)
discussion
judgment;
on a
a
taxes
Dallas,
Jr.,
respon-
Garon,
for
and Herbert
ra-
City’s employees were
whether Treasure
dent.
biased;
(5)
of whether
cially
a
deposi-
reimbursement
DENTON, Justice.
way
assess dam-
a better
tion costs was
(6) a
charge;
the court’s
questions concеrning
ages than
follow
appeal presents
she “had
hearing,
the trial
After
jury misconduct.
exemplary
Although
appeals opinion
reveals that
the correct
the court of civil
$7,000.00.
City should
states that the
found Treasure
recoi
i
give
reasons to
as much money
possible”
binding
appellate
is
If,
review.
plaintiff.
however, the evidence of misconduct is not
conflicting,
reviewing
court is not bound
In reviewing the record to
determine
by a finding of the
trial court
legal
certain
rules must be ap-
contrary to
Brawley
conclusive evidence.
*3
plied. Rule 327
provides:
Tex.R.Civ.P.
Bowen,
(Tex.1965);
testified that he Bias Personal Statement charge, under the court’s and had immedi- by the found of misconduct Another act of the ately reprimanded any violations was the court of civil jurors. court’s instructions reasons juror “had that she charge required court’s to consider possible” to the give mоney much humil- only anguish, elements mental made alleged to have plaintiff. iation, damage reputation. There- testify at was not called the statement fore, Mr. Braun’s that he fol- is no evidence hearing, so there lowed conflicts with the charge the court’s *4 statement, or that the such a truth of suggestion that his the testimony at in of in fact biasеd favor Mrs. was Sanchez means of actual dam- determining utilized a allege City does not plaintiff. Treasure the the ages that violated court’s instructions. by committed misconduct that Mrs. Sanchez Hearks, Casualty v. Maryland In Co. person- incorrectly answering inquiry an (1945), court S.W.2d Shop Swap voir dire. al bias the See the held that trial court’s determination (Tex.1963). Fortune, 365 v. S.W.2d misconduct did not occur was not error personal of bias such a statement inconsistency juror’s in view into the prejudicial matter which introduces Monkey Grip See also Rubber testimony. Mc- is misconduct. See jury’s deliberations Walton, 122 Tex. Co. Practice, 14.11 Donald, § Texas Civil (1932) in court which this stated: statement Mr. testified that hearing A Braun uрon such testimony during delibera by was made Mrs. Sanchez may contradictory be so and inconsistent special is damages exercising its tions on the privi- the trial court in held out lege pass credibility that “Mrs. Sanchez upon sue. He stated amount, may justified disregarding very witness be in it was I think high testimony. $14,500, his entire her how-what-how she and I asked or where and why arrived at this Richards, Mrs. who with disagreed also personal.” Mrs. Richards she said that its verdict, testified that the actual dam- deliberations Mrs. also testified ages figure by was determined “someone” person had made the statement Sanchez calculating the amount any did not recall al bias. Juror Norton days lost in in two addition statement, and Juror juror making such а costs, deposition attorney’s fees. mat on this questioned Anderson was not in Her conflicts with Braun’s testimony of Braun and positive ter. The that Braun she testified told by Norton’s is not contradicted Richards wages. were not to consider mis not recall such that he could statement Mrs. remaining jurors, Of the two Ander- Works Metal conduct. Southwestern Sheet sоn had no recollection of the discussion Co., v. C. H. Leavell & costs, fees, or how the deposition attorney’s n. r. (Tex.Civ.App.-El Paso was award deter- actual Carter, e.); Ins. Travelers Co. however, Norton, testified that mined. Mr. (Eastland 1956, writ ref’d n. r. have come subject wages may immediately but “shut off” up, disregard we are unable Since foreman, hе recall could not by uncontradicted, unimpeached positive, wages. anyone calculating lost hold we concerning by bias Mrs. conflicting testimony statement In view of the that the in Norton, Mr. Richards and Sanchez material Mrs. prejudi deliberations Braun, inconsistency Mr. Braun’s troduced into the Next, the record. required to follow cial matter outside testimony, we are own must be determined whether questioned record When on whether there had shows that injury probably race, resulted to concerning been Mrs. Treasure from this misconduct. Mrs. Richards stated that some members of the Sanchez’ expressed had opinions was not to the made in an effect attempt that it persuade jurors, was more difficult for minorities to merely but in reply take the initiative and sue to to the recover dam- question. foreman’s ages for jur- discrimination. The other two statement was repeated, it was not ors were not questioned on this by discussed matter. the other and no fur- ther explanation was by offered Mrs. San- significant It is to note thаt issue chez. In view of this and the fact that the inquired No. 3 whether the employees of exemplary damages finally awarded acted had with malice. jury were less than half the sought amount jury was instructed follows: Sanchez, Mrs. we conclude that the mis- Malice means ill will and bad or evil conduct did probable not result in injury to motive or such gross indifferеnce to the defendant, City. Mrs. Baird’s rights of another as amounts to a willful Hearn, Bread Co. v. or wanton intentionally act done 649-50 just without cause or excuse.
A plaintiff discussion of whether Taxes “gotten a fair shake" would be consist *5 ent with the inquiry special contained in Braun testified that someone 3, issue No. and relevant to the award of madе a passing comment that “they wanted Therefore, exemplary damages. a to make sure that whatever award [the expression opinion of an on the issue of plaintiff] got would be tax free.” Mrs. plaintiff “gotten a fair Richards testified that the subject of in shake” was not misconduct in this context. come tax had been mentioned sоmeone general conversation. Neither An Mrs. Attorney’s Fees derson nor Mr. Norton could recall Mr. Braun testified that mention of income tax. Since there was “tossed opinion given around” and an that only a casual comment on income tax made under a contingency arrangement, fee by an juror, unidentified rather than an рlaintiff would receive two-thirds and their extended discussion among we attorney judgment. one-third of the This hold that such misconduct was not material. was occurring during described as a “ram particular misconduct was not reason bling among jurors. discussion” several ably calculated to prejudice rights Braun reprimanded stated that after he City, appear it does not from jurors, no further discussion was had. Mrs. the record that injury probably resulted. Richards testified that she also rebuked the Hearn, Mrs. Baird’s Bread v.Co. discussion of attorney’s fees. Mr. Norton 159, 646, S.W.2d 649-50 subject recalled that attorney’s fees arose, but was “shut off” the foreman.
Bias Mrs. Anderson could not recall a discussion Mr. Braun testified that the jury’s attorney’s fees. The mere mention of deliberations on issue No. 4 on ex- attorney’s fees jury deliberations emplary damages someone made a state- has been held require insufficient to a new ment plaintiff get that “didn’t a fair trial. Thompson, Walker v.
shake” because he was black. Braun
1956,
also
(Tex.Civ.App.-San Antonio
discussion,
testifiеd that “there was no
e.);
Estes,
n. r.
of Fort Worth v.
just
was
a
687,
comment
that none of us felt
(Tex.Civ.App.-Fort
Worth
was a fact.” He also stated that he
e.); McCarthy
writ ref’d n. r.
Oil &
probably gave
reprimand
a
after
Corp. Cunningham,
the re- Gas
v.
255 S.W.2d
mark.
371-72 (Tex.Civ.App.-Galveston
writ
the amount
testimony that
no
there is
also,
e.);
r.
General Motors
ref’d n.
see
mention
(Tex.
increased after
was
Corp.
the verdict
Hopkins,
535 S.W.2d
1976), aff’d
of insurance.
Civ.App.-Houston [1st Dist.]
(Tex.1977);
Pacific
Missouri
Duncan, 140 Tex.
Barrington v.
In
Vann,
Railroad Co.
384 S.W.2d
(1943),
judi-
this court
169 S.W.2d
1964, writ ref’d n.
(Tex.Civ.App.-Beaumont
apt
jury more
“that a
cially noticed
attorney’s
fees
r.
A casual mention
defendant, and
a
against
render a
is not material
promptly
which is
rebuked
knows
if it
larger
amount
unreasonably prej-
misconduct which would
(Em-
by insurance.”
is protected
defendant
udice a defendant. We conclude
Laz-
in Putman v.
added).
phasis
preju-
unreasonably
was not
493, 154, arus,
Tex.
attorney’s
by the mention of
fees as
diced
that,
opinion
“It is our
(1956)
held
this court
by this record.
shown
insurance,
mention
a mere casual
discussion,
prompt
aby
followed
without
Insurance
juror, does not consti-
from a fellow
rebuke
Finally, we must determine whether
require
as would
tute such misconduct
due
a discus-
there
on the
reversal
insurance. Mr. Braun testified that
sion of
was not an
there
verdict.” Since
jury’s
juror wondered aloud whether
de-
one
insurance, and
about
extended
rebuked,
fendant
an
it was рromptly
each mention
jur-
Braun then advised the
judgment.
was not
the misconduct
we conclude
discuss such mat-
ors that
were
material.
subject of insur-
ters. He stated that
consider whether
Next we must
again
up during
ance
came
the deliberations
acts of miscon
effect of these
cumulative
again
and that he
Scoggins
probable injury.
resultеd in
duct
gave
reprimand.
that the
Braun testified
15, 219
Taylor, 148
v. Curtiss &
involvement of
been stated
insurance had
*6
Pope, Jury Miscon
J.
(1949). See
opinion
as
rather than fact. Mrs. Richards’
Harm,
L.Rev.
375-
Baylor
and
duct
of insurance
on
discussion
Considering
as a
the record
was contradictory. She testified that one
injury to
whole,
probable
we conclude
jurors
big companies
of
all
stated that
has
City,
party,
complaining
insurance,
carry
and someone was
liability
shown,
the trial court
and that
not been
type
familiar with the
of insurance cover-
City’s motion
denying
err in
not
age
may
involved. She testified that Braun
Tex.R.Civ.P.;
for new trial. Rule
reprimanded
have
the discussion of insur-
506, 507
Ferguson,
Fountain
ance, and that she did rebuke such a discus-
denied,
(Tex.1969),
396 U.S.
rt.
ce
crоss-examination,
Later,
sion.
she tes-
433,
the verdict. City, has Respondent, Treasure calling our rehearing for it would filed motion on this Based three presented fact that subject of insurance was attention appear that of civil points in mentioned, of error promptly rebuked twice under its immaterial on insurance which were rendered both times. The comments challenge fact, points holding. of these opinion were than Some stated rather support brief, evidence to sufficiency no amount of comments were >, findings in answer Als coverage was discussed. issues. Court jurisdiction Since this has no error, determine points these we re-
mand the appeals. cause to the court of civil
Custom Leasing, Inc. v. Texas Bank & Tr. Dallas, Tex.,
Co. of
(1973);
points of error not heretofore considered. ed: Respondent,
IT IS ORDERED is in Edgar Englutt, contempt Charles Court, be, punishment hereby fine of $100.00 assessed at a Jail of County confinement in the Collin hours, Texas, County, period of 24 purges contempt or until he himself of he has: parte Edgar Ex Charles ENGLUTT. 1. Paid the sum of to Mov- through the County ant Collin Child B-9655.
No. Support support Office as child arrear- age. Supreme Court of Texas. 2. Paid the sum of the Dis- $56.00
Oct. Clerk, Texas, County, trict Collin and, costs this proceeding; *7 sum of to Bill Ter- $300.00 Pаid the Movant, ry, attorney for as costs of this proceeding. Order,
Pursuant commitment County was directed to the sheriff Collin June, 19th 1980 and on day date relator was confined the Collin jail County 24 hours. more than July paid $100.00 relator fine release, requested which was de- his August nied. On relator filed habeas and this him corpus Court ordered released on bond. argues punishment
Relator set by the Collin was a County Court $100.00 purged or until he jail fine and 24 hours in