State v. Wair

Texas Supreme Court

State v. Wair

351 S.W.2d 878, 163 Tex. 69, 5 Tex. Sup. Ct. J. 169, 1961 Tex. LEXIS 615

CourtTexas Supreme Court

DecidedDecember 13, 1961

DocketA-8679

StatusPublished

Cited by47 cases

This text of 351 S.W.2d 878 (State v. Wair) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Wair, 351 S.W.2d 878, 163 Tex. 69, 5 Tex. Sup. Ct. J. 169, 1961 Tex. LEXIS 615 (Tex. 1961).

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Opinion

PER CURIAM.

The State brought this condemnation suit for a right-of-way east of Paris, Texas. The only question tried was the amount of damages. The landowner sought a new trial on the ground of jury misconduct. He alleged that the jury used a quotient verdict. The court, after hearing testimony from 4 of the 6 jurors, overruled the motion, thus finding that misconduct did not occur. The Court of Civil Appeals reversed on the grounds that it appeared beyond question and as a matter of law that misconduct did occur; and in the alternative, if there was some evidence to support the trial court’s implied finding of “no misconduct”, then it held that the finding was against the overwhelming weight and preponderance of the evidence. 349 S.W. 2d 637. The question is whether this finding of the trial judge should be tested by (1) the great weight and preponderance of the evidence or by (2) abuse of discretion.

The trial court’s refusal to grant a new trial upon an express or implied finding of no occurrence of jury misconduct is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown. Barring- *71 ton v. Duncan, 140 Texas 510, 169 S.W. 2d 462 (1943) ; Maryland Casualty Co. v. Hearks, 144 Texas 317, 190 S.W. 2d 62 (1945) ; Saladiner v. Polanco, 160 S.W. 2d 531 (1942, error refused) ; Thompson v. Railway Express Agency, 206 S.W. 2d 134 (1947, n.r.e.); Martin v. Shell, 262 S.W. 2d 564 (1953, no writ) ; Morgan v. State, 343 S.W. 2d 738 (1961, ref., n.r.e). The occurrence of jury misconduct is not properly reviewed by the great weight and preponderance test which was applied by the Court of Civil Appeals. We hold that the occurrence of jury misconduct was conclusively proved as a matter of law and that the trial court clearly abused its discretion in not granting a new trial. Probable injury of a jury’s misconduct, once misconduct has been found to have occurred, is a question of law for the trial court and reviewing courts to determine from a review of the entire record, and from such a review we conclude that the respondents probably were injured from the quotient verdict. City of Houston v. Quinones, 142 Texas 282, 177 S.W. 2d 259 (1944).

The application for writ of error is therefore refused, no reversible error.

Opinion delivered December 13, 1961.

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PER CURIAM.

The State brought this condemnation suit for a right-of-way east of Paris, Texas. The only question tried was the amount of damages. The landowner sought a new trial on the ground of jury misconduct. He alleged that the jury used a quotient verdict. The court, after hearing testimony from 4 of the 6 jurors, overruled the motion, thus finding that misconduct did not occur. The Court of Civil Appeals reversed on the grounds that it appeared beyond question and as a matter of law that misconduct did occur; and in the alternative, if there was some evidence to support the trial court’s implied finding of “no misconduct”, then it held that the finding was against the overwhelming weight and preponderance of the evidence. 349 S.W. 2d 637. The question is whether this finding of the trial judge should be tested by (1) the great weight and preponderance of the evidence or by (2) abuse of discretion.

The trial court’s refusal to grant a new trial upon an express or implied finding of no occurrence of jury misconduct is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown. Barring- *71 ton v. Duncan, 140 Texas 510, 169 S.W. 2d 462 (1943) ; Maryland Casualty Co. v. Hearks, 144 Texas 317, 190 S.W. 2d 62 (1945) ; Saladiner v. Polanco, 160 S.W. 2d 531 (1942, error refused) ; Thompson v. Railway Express Agency, 206 S.W. 2d 134 (1947, n.r.e.); Martin v. Shell, 262 S.W. 2d 564 (1953, no writ) ; Morgan v. State, 343 S.W. 2d 738 (1961, ref., n.r.e). The occurrence of jury misconduct is not properly reviewed by the great weight and preponderance test which was applied by the Court of Civil Appeals. We hold that the occurrence of jury misconduct was conclusively proved as a matter of law and that the trial court clearly abused its discretion in not granting a new trial. Probable injury of a jury’s misconduct, once misconduct has been found to have occurred, is a question of law for the trial court and reviewing courts to determine from a review of the entire record, and from such a review we conclude that the respondents probably were injured from the quotient verdict. City of Houston v. Quinones, 142 Texas 282, 177 S.W. 2d 259 (1944).

The application for writ of error is therefore refused, no reversible error.

Opinion delivered December 13, 1961.

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351 S.W.2d 878, 163 Tex. 69, 5 Tex. Sup. Ct. J. 169, 1961 Tex. LEXIS 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wair-tex-1961.

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