The appellants, Mrs. Otta F. Abrams, joined by her husband, Max Abrams, as plaintiffs, brought this suit in the court below against appellee, H. D. Bradshaw, as defendant, to recover damages for personal injuries alleged to have been sustained by appellant Mrs. Otta F. Abrams on the premises owned and operated by the appellee as a garage and automobile saleshouse. Appellants alleged that the automobile owned by appellants was taken by appellant Mrs. Otta F. Abrams to appellee's place of business for the purpose of having same oiled and cleaned, and that she drove it inside of appellee's premises at his invitation, and, while in there, she stepped upon an appliance known as a "creeper," a device consisting of a platform 19 1/2 inches wide by 38 1/2 inches long, resting on four sets of ball bearing *Page 918 rollers, height from top of platform to floor being about 4 inches, alleged to have been negligently left on the floor by appellee, and that she thereby sustained personal injuries and was damaged thereby in the sum of $26,000. Appellee answered by way of general demurrer, general denial, and plea of contributory negligence, in which it was alleged that appellant Mrs. Otta F. Abrams —
"In walking across the floor, she failed to look where she was going, but heedlessly proceeded across the floor without taking any note of what she might encounter, and, in choosing to remain in the immediate vicinity of where the work was going on upon her automobile, which was the work she had ordered to be done, and in the prosecution of which a `creeper' was indispensable."
The following special issues were submitted and answers made thereto:
"Special issue No. 1. Were the agents and servants of the defendant, in leaving the creeper on the floor on the occasion in question in the manner in which they left it, exercising ordinary care to maintain the premises in a reasonably safe condition for the protection and safety of the plaintiff? Answer yes or no. Answer: No.
"If you have answered special issue No. 1 `yes,' you need not answer special issue No. 2; if you have answered special issue No. 1 `No,' then you will answer special issue No. 2.
"Special issue No. 2. Were the injuries received by the plaintiff on the occasion in question proximately caused by the failure of the defendant to exercise ordinary care in maintaining his premises in a reasonably safe condition? Answer yes or no. Answer: No.
"Special issue No. 3. Did the plaintiff observe the creeper in question immediately prior to the time she stepped upon the same? Answer yes or no. Answer: Yes.
"If you have answered special issue No. 3 `Yes,' you need not answer special issue No. 4; but if you have answered special issue No. 3 `No,' then you will answer special issue No. 4.
"Special issue No. 4. Was the plaintiff guilty of contributory negligence in failing to observe the creeper before she stepped on the same? Answer yes or no. Answer: ______.
"Special issue No. 5. Was the plaintiff guilty of contributory negligence in proceeding across the floor in the manner she did on the occasion in question? Answer yes or no. Answer: Yes.
"Special issue No. 6. Was the plaintiff guilty of contributory negligence on the occasion in question in proceeding to take the route she did take to the office? Answer yes or no. Answer: No.
"If you have answered special issues 4, 5, and 6, or either of them, `Yes,' then you will answer special issue No. 7; if you have answered each of said special issues 4, 5, and 6 `No,' then you need not answer special issue No. 7.
"Special issue No. 7. Was such contributory negligence, if any you have found on the part of plaintiff, the direct and proximate cause of her injuries? Answer yes or no. Answer: Yes.
"Special issue No. 8. What sum of money, if paid now, would reasonably compensate the plaintiff for her reasonable doctors' bills and for her pain and suffering, if any, suffered and to be suffered by her, and for the physical injuries she sustained, if any? Answer: $500."
The findings of the jury in answer to said special issues, being sustained by ample evidence, are adopted as the findings of fact by this court on the merits of the case. Judgment was entered in favor of appellee.
The following propositions challenge the validity of the proceedings had up to and including the rendition of the verdict:
First: "Where the jury found in answer to one special issue that the leaving of a dangerous mechanical instrument on the floor was negligence on the part of the defendant, and there was no allegation or evidence of any other act or thing than the leaving of such instrument being the cause of plaintiff's injury, a finding of the jury in answer to another special issue that such negligence on the part of the defendant was not the proximate cause of the injury is so contrary to the great weight and preponderance of the evidence in the case, and is so unsupported by the evidence, as to require such jury verdict to be set aside."
Fourth: "Since the act of negligence complained of in this case against the plaintiff by the defendant was the leaving on the floor of a dangerous mechanical device, the characteristics of which were unknown to the plaintiff, and over which the plaintiff tripped and fell, it was error for the court to submit special issue No. 3 as to whether or not plaintiff saw the mechanical device; such issue being purely evidentiary."
Fifth: "The findings of the jury in answer to special issue No. 5 are against the great weight and preponderance of the evidence, and are in conflict therewith, in that the great weight and preponderance of the evidence establishes that the plaintiff was exercising ordinary care in walking across the floor on the occasion of her injury."
We have carefully considered the above propositions in the light of the issues raised by the pleadings and the evidence introduced thereon, with result that we failed to find any merit in either one of said propositions. Therefore same are overruled.
By the following propositions appellant presents for our review alleged misconduct of the jury in their deliberations, which was reflected in the verdict rendered:
Second: "The jurors in this case, after retiring to consider their verdict, having agreed before answering the special issues to allow the plaintiff damages, and having attempted to so answer the special issues submitted as to carry out the agreement to give the plaintiff damages, were guilty of such misconduct as to require the trial court to set aside the entire jury verdict and to grant a new trial, and the court erred in refusing so to do.
Third: "The jury in this case, when considering their verdict in the jury room, before answering material issues submitted to them, having discussed at length the legal effect of their proposed answers in order to render a verdict for the plaintiff, were guilty of such *Page 919 misconduct which affected the verdict as required the entire verdict to be set aside and a new trial granted, and the court erred in refusing so to do."
The alleged misconduct is sought to be reviewed under article 2234, Revised Civil Statutes 1925, which reads as follows:
"Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material."
It will be noted that in effect the misconduct charged is that before the special issues had been answered an agreement had been reached by the jurors to allow appellant Mrs. Otta F. Abrams damages, and thereafter attempted to so answer said issues as to carry out that agreement, and, further, that the jury, before answering the issues submitted, discussed at length the legal effect of their proposed answers in order to render a verdict for the appellant Mrs. Abrams.
What was intended to be accomplished by the Legislature in passing the act authorizing the submission of a cause on special issues becomes a pertinent inquiry. Article 2189, Revised Civil Statutes 1925, provides:
"In all jury cases the court may submit said cause on special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately."
It will be noted that the law with great exactness and care requires that special issues be distinctly and separately submitted by the court. To accomplish what is but an inquiry suggested by the law of reason. This we think may be answered as follows: To the end that there shall be no confusion of the issues submitted, but, to the contrary, each issue submitted should occupy to the other issues a separate and independent position that the determination of one issue shall not exert an influence over the disposition of another issue outside of the evidence before the jury applicable to all of the issues. With equal care, the law, through the following provision, "each issue shall be answered by the jury separately," requires that in the consideration of the issues submitted the jury shall answer each separately. This necessarily implies that, in the consideration of the issues submitted, each shall be considered and determined without reference to the result same will have on the disposition of the controversy between the parties or to the effect the disposition of one issue will have on other issues to be or that have been disposed of; that, in answering each special issue, no other influence should be permitted to operate upon jurors in the discharge of their legal duty than the evidence bearing upon the issues submitted. In other words, to secure a finding upon each issue submitted from the evidence alone, free from any bias, prejudice, or any predilection of any of the jurors, each being sworn to render a true verdict in accordance with the law and the evidence. It is, therefore, a matter of law how special issues shall be submitted, and equally so how same shall be considered and determined.
It is true the language of article 2234, supra, places the granting of a new trial under its terms within the sound discretion of the trial judge, which should not be disregarded by appellate courts. This discretion only exists with reference to the evidence where same is such that reasonable minds may be at variance in reaching a conclusion as to the facts proven thereby, and never exists with reference to the proper application of the law applicable to a state of facts established by the evidence so conclusively that there is no room for reasonable minds to differ in reference thereto. The use of the word "material" in said article 2234, supra, undoubtedly has a significant meaning; namely, that a new trial may be granted if the misconduct of the jury be material to the orderly determination of the rights of the parties litigant according to the established forms of law. Therefore, if the evidence introduced established that the jury in their deliberations failed to observe the law in reaching a conclusion on the issues submitted, then such misconduct would be material, as the law governing the conduct of the jury was disregarded, an observance of same being necessary in order to accomplish the purpose for which the law providing for the submission of a cause under special issues was enacted.
Therefore the validity of the judgment of the trial court refusing a new trial on the ground of misconduct of the jury must be determined from the evidence introduced on the issues thus raised. We find that on the hearing of said issues the following material facts were established by the evidence introduced: Five of the jurors, namely, C. L. Alexander, George Rice, J. J. Taylor, R. W. Roberts, and George A. Burton, testified, in reference to the alleged misconduct of the jury, substantially that the members of the jury, before answer had been made to the special issues submitted, agreed that the appellants should recover something, and further agreed that the sum of $500 should be the amount, and that the special issues submitted should be so answered as to give appellant Mrs. Otta F. Abrams recovery for *Page 920 such sum. That what would be the effect of answering "yes" or "no" to all of said special issues, except No. 8, on said agreement was discussed by all of the jurors, some contending that the effect would be to prevent a recovery by appellants, and others that it would not have that effect; that before the verdict was returned into court on the third day of the deliberations of the jury, an oral understanding was reached by all of the jurors that appellant Mrs. Abrams and appellee each contributed to the accident therefore appellee should be held liable for damages, but, as appellant Mrs. Abrams contributed to her own injury, the amount of damages should be less, as the offense of the appellee should be mitigated, and the appellant should be awarded the sum of $500; that one or two jurors favored a little more and some at first favored less, that in answering the special issues, all of the jurors had in mind the framing of same so that the appellants would recover the sum of $500; that when the jury came to special issue No. 7, a discussion was raised whether or not an affirmative answer on that issue would cut the appellant Mrs. Abrams off from any recovery, and after much discussion among the jury as to this question, the jurors sent a written memorandum to the judge asking him what the effect of such finding would be, and after being instructed by the court that the court could not answer their question and that the effect of their findings was not to be considered by them, the jury had further discussion as to the effect of answering special issue No. 7 in the affirmative, some of the jurors contending that such an answer would cut said appellant off and others contending that it would not, and that some of the jurors, viz., C. L. Alexander, J. J. Taylor, and George Rice, were persuaded as a result of this argument and discussion to answer such issue against their real wishes in the case and against their desires as to how the question should be answered; that each of the five jurors, testifying on the hearing of said motion, stated that in arriving at the answers to the special issues submitted that they did not intend to disregard the evidence, but it was their purpose to make answer in accordance therewith to each of the issues submitted.
Under the above facts, we are of the opinion that misconduct within the meaning of said article 2234, supra, was established in that the jury did not consider and determine from the evidence solely the answers that should be made to the questions submitted separately, but also took into account and considered the effect that the answer to one special issue would have on answers to be made to other special issues, and the making of the agreement, that appellants were entitled to recover in some sum, before considering and answering the special issues submitting other matters than the amount of damages sustained by the appellant Mrs. Abrams and in attempting to make answers to such special issues for the purpose of carrying out said agreement. This holding is within the rule of decision announced in the following authorities: Gulf, C. S. F. Ry. Co. v. Harvey (Tex.Com.App.) 276 S.W. 895: Coons v. Culp (Tex.Civ.App.) 278 S.W. 914; Sims v. Sims (Tex.Civ.App.) 296 S.W. 612; Houston T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S.W. 606; So. Trac. Co. v. Wilson (Tex.Com.App.) 254 S.W. 1104; Moore v. Ivey (Tex.Com.App.) 277 S.W. 106; Letsinger v. Panhandle Ry. Co. (Tex.Civ.App.) 286 S.W. 1107.
We are therefore of the opinion that said cause should be and same is reversed and remanded.
Reversed and remanded.