I dissent. Plaintiffs proved an overt act of material jury misconduct which resulted in probable injury.
Juror Bledsoe testified that while they were discussing the issues covering the conduct *Page 724 of Gayle Chaney, he overheard someone say that Chaney did not have any insurance. He said he thought it was Juror Housh who made the statement. He said that up to that point, Housh had done a good bit of talking on the questions. Bledsoe stated it seemed to him there was more than one reference made about insurance and such references were made at "the early part of the time we was in there" while they were discussing the questions about Gayle Chaney's conduct. He stated, that while the jury was in the jury room, "it was discussed in there, on the insurance, and they thought he was going to have to pay, and things like that." He testified that following the statement made by Housh regarding insurance one of the men said, "Well, we wasn't supposed to consider that." He said Juror Anderson Stated, "that if the Chaneys didn't have any insurance, they ought to have."
Juror Bryant stated, "One time the word "insurance" was brought up, and somebody, I don't remember who, said we weren't supposed to consider it, the fact that there might be insurance. I don't remember who it was or anything about it, really, I just remember that it was brought up."
Juror Swift testified she remembered only that the word "insurance" was mentioned on one or more occasions, and that each time it was mentioned somebody said it was not proper to consider it.
Juror Anderson testified that during the time the jury was considering Special Issues 1, 3, 5, and 7, somebody, probably Housh, said, "that they didn't think they had insurance." Anderson stated he thought he responded by saying, "Why, I'm sure he had insurance." He said insurance was mentioned probably two or three times. On cross-examination, Anderson testified that when insurance was mentioned, admonitions were given that insurance was not to be considered, and that would stop the discussion of insurance.
It is improper to disclose that a defendant does or does not have liability insurance. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962 (1944). The size of the verdict is a proper matter for consideration in determining the issue of probable injury. Great Western Inv. Co. v. Scott, 254 S.W.2d 411 (Tex.Civ.App. — San Antonio, 1952, writ ref. n.r.e.); Eichelberger v. Rankin, 278 S.W.2d 278 (Tex.Civ.App. — San Antonio 1955, writ ref. n.r.e.); Pope, Jury Misconduct and Harm, XII Baylor L.Rev. 355 (1960). The jury in the instant case answered "O" to all damage issues.
Debra Jean Lemaster received extensive burns over 45% of her body. She was hospitalized in the Fort Worth Children's Hospital for 102 days, where she incurred a $13,776.50 hospital bill. The bill of the plastic surgeon was $6,915.00. The liability issues were close and highly controverted. The injuries were severe, yet the jury answered "O" to all damage issues. In my opinion, plaintiffs have shown probable injury. Rule 327, T.R.C.P.; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943).
I would reverse and remand the cause.