UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50859
Summary Calendar
CHARLES CADDELL, Individually
and on behalf of his mother, Mildred Caddell,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Texas
(MO-96-CV-82)
April 9, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:1
Charles Caddell had a shirt taken off his back in an Odessa
Wal-Mart store when he was detained as a shoplifting suspect. He
appeals from a jury verdict that found Wal-Mart was not liable for
conversion of the shirt. He also appeals the district court’s
grant of a partial summary judgment dismissing his claims on behalf
of his deceased mother under the theories of negligent infliction
of emotional distress and bystander recovery and the denial of his
motion for a new trial based upon jury misconduct and newly
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
discovered evidence.
We have carefully reviewed the record and considered the
briefs of the parties. There was sufficient evidence presented
that a reasonable juror could find that the Baja shirt alleged to
have been shoplifted was not owned by Caddell and thus was not
converted by Wal-Mart. See Pagan v. Shoney’s, Inc., 931 F.2d 334,
337 (5th Cir. 1991).
Further, the district court did not err in dismissing claims
brought on behalf of Mildred Caddell. Texas law does not recognize
negligent infliction of emotional distress as a cause of action.
Nor did the court err in finding that no dispute of material fact
existed that she did not witness a serious or fatal accident and in
dismissing her bystander recovery claim.
Whether a new trial should be granted because of alleged jury
misconduct is left to the sound discretion of the trial court and
must be decided on an ad hoc basis. Vezina v. Theriot Marine
Service, Inc., 554 F.2d 654 (5th Cir. 1977). In a review of the
hearing conducted on the motion for a new trial, we find no abuse
of discretion in the denial of that motion.
Accordingly, the decisions of the district court are AFFIRMED.
2