The writer is unable to agree to the opinion of the majority of this court, affirming the judgment of the lower court, hence files this dissent, in respect only to that part of the majority holding, herein discussed.
The undisputed evidence shows that, at the time of the injury, appellee was afflicted with a right and left inguinal hernia. One of the major items of damages alleged and sustained by evidence is, that the injury received on account of appellant's negligence had resulted in the serious aggravation of these existing hernias. Appellant, by its pleadings, denied any such aggravation on the occasion of appellee's injuries, and sustained such contention by evidence. It was therefore a sharply contested issue as to this item of damage. The charge of the court contained the submission of no special issue in respect to this contested issue. This omission was called to the attention of the court by a request for submission of the two following special issues: "No. 6: Do you find from a preponderance of the evidence that plaintiff's right inguinal hernia was aggravated at the time and on the occasion of the accident?" also No. 7: "Do you find and believe from a preponderance of the evidence that plaintiff's left inguinal hernia was aggravated at the time and on the occasion of said accident?" To the refusal of the court to submit these two special issues, appellant duly excepted and has duly presented to this court assignments of error in this respect. The writer is inclined to believe that the failure of the court to submit this controverted issue to the jury was error.
It is true that only ultimate issues of fact should be submitted to a jury, and it is also true that a negative answer by the jury to this controverted issue would not necessarily call for the rendition of judgment in favor of appellant, for there were other injuries complained of by appellee that might call for the assessment of damages in his favor. What is an ultimate issue of fact in respect to appellant's pleaded defenses? Manifestly, it is the submission of any issue of fact that, if found in favor of appellant, would defeat in whole, or in part, appellee's claim for damages. *Page 806
If this controverted issue had been submitted and found in appellant's favor, then at least a part of appellee's cause of action would have been defeated. His cause of action included not only the allegation of negligence and proximate cause, but also included the injury and the damages resulting therefrom. The issue of an aggravation of the hernia is just as much a part of his cause of action as the issue of any of the other injuries alleged to have been received.
It is well-settled law in this state that, when a defendant pleads an affirmative defense to the whole, or a part, of the plaintiff's cause of action, and the case is submitted on special issues, the defendant is entitled to an affirmative submission of every defense pleaded and sustained by substantial evidence. Article 2189, R.S. 1925, and article 2190, as amended by Acts 1931, c. 78, § 1 (Vernon's Ann.Civ.St. arts. 2189, 2190); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; St. Louis, S. F. T. R. Co. v. Wilson (Tex.Com.App.) 279 S.W. 808; Darden v. Denison (Tex.Civ.App.) 3 S.W.2d 137; Hulen v. Ives (Tex.Civ.App.) 281 S.W. 350; Texas P. R. Co. v. Perkins (Tex.Civ.App.) 284 S.W. 683. This right was denied appellant in the matter of the defense under inquiry.
It is true that the learned trial judge, in connection with the submission of the measure of appellee's damages, in the form of a general charge, instructed the jury that:
"You are instructed that you cannot allow him anything by reason of said hernia condition, or other ailment, if any, that existed prior to the collision by reason of any mental or physical suffering, if any, had by him in the past or by reason of any physical or mental suffering you may believe from a preponderance of the evidence to be occasioned him in the future or by reason of any diminished capacity to labor or earn money, if any found, in the past or in the future, or any other injuries resulting from said former condition which you may believe from the evidence has resulted or will result by reason of the former condition and afflictions of plaintiff, if, however, you believe from a preponderance of the evidence that plaintiff's former afflictions were aggravated on said occasion and that said aggravation, if any, thereof resulted from the collision and that the collision was the proximate cause of such aggravation, if any, then you will allow the plaintiff for such of those items of damages enumerated in said issue which you believe from a preponderance of the evidence directly resulted from such aggravation, if any, and for such other injuries, if any, plaintiff sustained, at said time and on said occasion."
This general charge does not bring before the jury this special defense in the affirmative way contemplated by the special issue law. Missouri, K. T. R. Co. v. Morgan, 49 Tex. Civ. App. 212, 108 S.W. 724. It is believed that the failure of the trial court to submit affirmatively the defense herein discussed was error.
Notwithstanding the court qualified appellant's bill of exception to the action of the court in overruling the motion for a new trial, based on the misconduct of the jury, to the effect, that the testimony of such misconduct is "rather vague and uncertain and contradicted on all material matters," the writer believes that there was shown such misconduct as calls for a reversal of this case. Such modification of the bill of exception is a legal conclusion, stating the effect of the evidence heard on the motion for a new trial, because of such alleged misconduct, and where the evidence is given in the record, the trial court's conclusion as to its effect becomes a matter of law for appellate inquiry.
As shown by the majority opinion, one juror stated in the jury room that he would not have had Halford's accident happen to him for $50,000; that in damage suits the lawyer gets the biggest part of the haul; and that if the jury wished to give him anything, they would have to give him a large sum; that contingent fees were usually 50 per cent., and that out of the amount allowed, plaintiff would also have to pay the compensation carrier, the insurance company, about $2,500; that one juror testified that he heard another juror remark, in the presence of other jurors, that "he (the juror) was suffering with a hernia, and that he knew and thought it was a fact that an accident such as the Halford accident would almost kill or incapacitate permanently a man suffering with a hernia." Another juror stated that he had had a hernia, and the fact that he had had a hernia made him know that Halford could have gone on working with his hernia, if it had not been for this accident. Another juror gave his version of this juror's remark, that, "He had a hernia, and that a hernia would not *Page 807 incapacitate Mr. Halford from continuing work if it had not been for the accident." This evidence appears to be only negatively disputed, that is one juror said he did not hear it, although he was listening in the jury room. This evidence shows that the jury received other evidence, on a material and sharply contested issue, from another member or members of the jury on the issue of the aggravation of appellee's hernia. That this was misconduct on the part of the jury, the writer thinks clearly appears.
Misconduct of the jury is ground for a new trial, unless it affirmatively appears that no harm resulted from such misconduct. The amount of this verdict alone is sufficient to show harm to appellant, and leads to the reasonable conclusion that the jury was influenced by the evidence shown to have been given by other jurors while considering the amount of the damages to be assessed. In the opinion of this writer, the case should be reversed on the two grounds herein discussed.