Sanchez v. Texas Employers Insurance Ass'n

618 S.W.2d 837, 1981 Tex. App. LEXIS 3738
CourtCourt of Appeals of Texas
DecidedMay 28, 1981
Docket9230
StatusPublished
Cited by15 cases

This text of 618 S.W.2d 837 (Sanchez v. Texas Employers Insurance Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanchez v. Texas Employers Insurance Ass'n, 618 S.W.2d 837, 1981 Tex. App. LEXIS 3738 (Tex. Ct. App. 1981).

Opinions

REYNOLDS, Chief Justice.

The trial court rendered a take-nothing judgment in this action by Julia 0. Sanchez to recover workers’ compensation benefits from Texas Employers Insurance Association. Sanchez contends she is entitled to a new trial because of jury misconduct and the lack of evidential support for the jury’s answers to some of the special issues. She demonstrates, however, only an entitlement to a partial new trial on the separable matter of nursing services. Affirmed in part; reversed and remanded in part.

While working for Meads Bakery in Lubbock, Texas, on 26 May 1977, Sanchez suffered a back injury. She was treated by the company doctor who told her she could return to work the next day. Instead, Sanchez saw and received treatment from other doctors and did not return to the bakery until August. From then until 12 March 1979, Sanchez intermittently worked at various employment including further work at Meads, and from time to time received further medical treatment. In the interim, TEIA paid her compensation benefits until she returned to work in August of 1977 and thereafter from 21 February 1978 through 13 October 1978.

On 12 March 1979, Sanchez underwent back surgery. The surgeon, upon encountering a herniated disc, relieved the pressure surrounding a nerve. Sanchez was given a general release to return to work on 1 June 1979.

In her suit against TEIA, Sanchez claimed total and permanent incapacity as a result of her accidental injury. The jury made a different determination. In answering the special issues submitted, the jury found that: Sanchez suffered a 26 May 1977 injury while in the course and scope of her employment; the injury was a producing cause of total incapacity from 12 March 1979 to 1 June 1979; the applicable average daily wage was $19.20; Sanchez was entitled to a lump sum payment; nursing services were reasonably required as a result of the injury; and TEIA did not fail to furnish nursing services within a reasonable time. The jury failed to find that the injury was a producing cause of any partial incapacity.

It was evidenced that compensation benefits paid to Sanchez were in excess of her recovery under the jury’s verdict. The court, then, rendered a take-nothing judgment on the verdict.

Appealing, Sanchez first claims error in the trial court’s refusal to grant her a new trial on the ground of jury misconduct. Her predicate is the testimony that some jurors mentioned personal experiences with back injuries; that one juror stated the entire case concerned past, not future, payments of compensation; that two jurors were not present when the foreman was chosen; and two of the jurors felt pressured into reaching the verdict they did.

Our discussion of this point must necessarily begin with an awareness of fundamental principles. By overruling Sanchez’s motion for new trial, the court impliedly found that misconduct did not occur. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969). Thus, to merit a new trial on the basis of jury misconduct, Sanchez must establish not only that the alleged misconduct occurred, but also that it [840]*840was material and that, based on the record as a whole, the misconduct probably resulted in harm to her. Tex.R.Civ.P. 327; Fountain v. Ferguson, supra, at 507. Furthermore, the trial court has considerable latitude in regard to granting a new trial for jury misconduct, and its ruling should be reversed only upon the showing of a clear abuse of discretion. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961).

Testimony elicited from five of the jurors in the motion-for-new-trial hearing indicated that on at least one occasion a juror mentioned her personal experience with back surgery. When the remark was made, the jury foreman responded by saying that he also had experience with back injuries, but that personal experiences should not play a part in their deliberations. Moreover, the foreman, joined by some members of the jury, stated that the jurors should base their decision on the facts and law of this particular case. Where, as here, the foreman promptly forestalls any further discussion of personal experiences and admonishes the jurors not to consider such matters, no reversible error is shown. National Surety Corporation v. Moore, 386 S.W.2d 327, 329 (Tex.Civ.App.—Dallas 1964, writ ref’d n.r.e.). Sanchez does not contend that the remarks she complains of were repeated after and in disregard of the admonitions so as to render inapplicable the general rule.

The statement of one of the jurors that the case was limited to a determination of past, not future, compensation, was not made on the basis of any outside knowledge; instead, the comment concerned his belief as to what the law and facts were in this case alone. The statement amounts to nothing more than a mere misunderstanding of what the case involved. As such, an expressed misconstruction of the court’s charge, which does not bring to the attention of the jury law or facts outside the record, should not be regarded as jury misconduct within the meaning of Rule 327. Compton v. Henrie, 364 S.W.2d 179, 184 (Tex.1963); Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364, 368 (1956).

Sanchez’s allegations that two of the jurors were not present when the foreman was chosen and that a few of the jurors felt pressured into making a decision do not merit, on the evidential record, a new trial. Not only is there testimony that everyone was given ample opportunity to discuss the evidence, albeit one juror stated she was not given every opportunity to discuss the verdict, but Sanchez has failed to show by the testimony that either circumstance probably resulted in any particular adverse answer. She, therefore, failed to demonstrate from the evidence that injury probably resulted to her. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27, 31 (Tex.1965).

On this record, the trial court did not clearly abuse its discretion in denying a new trial. Sanchez’s first point of error is overruled.

The remaining points presented by Sanchez are, as TEIA properly notes, multifarious, embracing no evidence, insufficient evidence and against the great weight and preponderance of the evidence contentions. Though the points are multifarious, our discernment of the true nature of Sanchez’s arguments, by the criteria of O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), is that they are great weight and preponderance points of error. They will be considered as.such.

By the first three of these points, Sanchez attacks the jury’s findings establishing the period of total incapacity and its failure to find any partial incapacity. A brief statement of the more than eleven hundred pages of the evidence is appropriate to show why, under applicable authority, the points are unavailing.

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Sanchez v. Texas Employers Insurance Ass'n
618 S.W.2d 837 (Court of Appeals of Texas, 1981)

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