On considering appellee's motion for rehearing we have concluded to write more fully on the question of the misconduct of the jury than we did in the main opinion.
The question presented is, to us, not easy of solution. We have found no case which we consider as fully deciding the point at issue. As said by Judge Ryan, of the Commission of Appeals, in McClintic et al. v. Young Corporation, 66 S.W.2d 676, 678, "The object of every trial is to give the parties a fair hearing according to the facts and circumstances properly before the jury."
We have sufficiently stated the facts in the opinion.
Here the jury went outside the record and adopted a statement of the foreman, controlling in its effects, wrong in theory and in the law given them in the charge by the court for their guidance in finding the facts upon which the judgment of the court must be based.
We recognize the rule laid down by the courts in other matters pertaining to the trial of cases, such as in argument of counsel, that a statement made, strictly speaking, may be outside the record, yet it does not necessarily constitute reversible error or the basis for valid objection, if the statement relates to a matter of common knowledge, Traders General Ins. Co. v. Peterson, Tex. Civ. App. 87 S.W.2d 322; Ford Motor Co. v. Whitt, Tex. Civ. App. 81 S.W.2d 1032; *Page 155 or a matter judicially known, Winnsboro Cotton Co. v. Carson, Tex. Civ. App. 185 S.W. 1002; or, as the rule has been expressed, if the statement relates to a subject as well known to the average juror as the Ten Commandments. Such statements, while regarded as improper, are not reversible errors. Improper matters happening may be withdrawn, or the court may direct that no consideration be given to it.
The sanctity of the juryroom and of jury verdicts, as said in Estep v. Bratton, Tex. Civ. App. 24 S.W.2d 465, and other cases, and referred to in 41 Tex.Jur. p. 836, par. 97, has been the source of much confusion and troublesome to the courts. From the authorities there referred to is said, "It is, however, agreed that juries must not be permitted to come in contact with any influence outside of the testimony, however subtle and impalpable it may be. They must accept the law from the court and obey its instructions." It is also there said that where misconduct is shown, "and there is reasonable doubt as to the effect," or, "the decision of any other material issue, the doubt will be resolved against the verdict." The last quotation is sustained by many cases referred to in note 6 on page 8337, 41 Tex.Jur. It is there said the verdict will be set aside if there is a reasonable doubt as to whether a single juror was influenced by the improper conduct. Such is not the rule as to immaterial matters, or where it is shown beyond doubt not to have affected the verdict. In Stepp v. Texas Pacific R. Co., 20 S.W.2d 324, by the Beaumont court, in an action by a passenger for damages for wrongful ejection from train, improper argument of one juror during deliberation that if passenger got judgment she would not get anything, since the railroad would appeal and secure a new trial and finally win the case. It was shown that the argument of the juror influenced one juror, and constituted reversible error. Now, where the jury intentionally found an amount beyond that sued for or the evidence showed, the error could be cured by a remittitur.
In Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App. 31 S.W.2d 669, 673, where one juror stated to another his construction of the court's charge that appellee be given the benefit of the doubt as to the proper answer of the special issues, the Eastland court said: "We do not believe that we can hold, as a matter of law, that the juror's expressed misconstruction of a court's charge is misconduct requiring a new trial."
In Kindle v. Packing Co., Tex. Civ. App. 103 S.W.2d 471, the trial court gave to the jury the definition of proximate cause as applied to a special issue. A juror (Smith) made an argument to the jury on the meaning of the term "proximate cause," as used in the court's charge. Smith claimed that proximate cause meant the whole cause; that he had served on juries, had been around the courthouse and come in contact with that word or its meaning. The result of Smith's argument was that some of the jurors changed their vote, and the jury agreed on Smith's version of the court's charge. It was held not such act of misconduct as to cause a new trial. It was simply a misconstruction of the court's charge. We think it apparent that the conduct of the jury in the instant case was an effort of the jury to follow its own method of reasoning rather than failure to properly understand and apply the court's charge on preponderance of the evidence.
In Green v. Enen, Tex. Civ. App. 270 S.W. 929, 930, in a suit on a note Green pleaded non est factum. One juror, to demonstrate his contention that a man never writes his name the same way twice, proceeded to write his name several times, and wrote other names. During the argument one juror agreed that when a person put his name on a piece of paper, "he has to pay for it whether he thinks he ought to * * * or not," and one juror "mentioned something about a note he had to pay." One of the grounds claiming misconduct of the jury was, that the statement of the juror "embraced an erroneous view of the law." In the opinion the San Antonio court said: "They [the jury] are entitled to summon these things to their aid in composing their differences, so long as they do not testify to facts dehors the record, and with assumed authority pronounce specific rules of law in conflict with the law of the case."
Here, the evidence of the jurors shows the jury was not discussing any part of the court's charge, they were not trying to arrive at the meaning of the "preponderance of the evidence," but assumed for themselves the rule they adopted and applied in deciding the facts of the case.
The facts, in our opinion, were not decided by the jury by law given them by the court, but by a law of their selection.
The motion is overruled. *Page 156