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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
ling plaintiffs are in a better position than non-settling defendants to insure that the settlement award is allocated between common damages and separate or punitive damages, and non-settling parties should not be penalized for events over which they have no control. Mobil Oil, 968 S.W.2d at 928.
Burlington is entitled to an offset equal to the amount WJHW paid in settlement of joint damages. Because the settlement was entered and the judgment was rendered before the supreme court issued its opinions in Casteel and Mobil Oil, we remand this issue to the trial court to allow GPS an opportunity to prove what allocation of damages between common damages and separate damages, if any, was agreed to at the time of the settlement. See id. at 928-29. The issue is not what GPS and WJHW would have agreed to, but what if anything they did agree to. The trial court should allow GPS to prove the allocation through extrinsic evidence, if necessary. See id. at 929. We sustain Burlington's seventh point of error.
Jury Misconduct
In its eighth point of error, Burlington contends the trial court erred in denying its motion for new trial because Burlington showed that outside influence was brought to bear on the jury. At the beginning of the second day of testimony, the trial judge announced to the parties that on the previous evening, one of the jurors, Charlie Newsom, informed him that Newsom's "father-in-law had retired from Burlington as a result of employment with Frisco Railroad." Newsom's father-in- law had been injured on the job and had not been compensated. The trial court consequently excused Newsom as a juror. The parties indicated they had no objection to proceeding with eleven jurors.
In its motion for new trial, Burlington asserted it learned after the verdict that one of the jurors who remained on the panel, Catherine Cain, discussed with Newsom his reasons for dismissal. Burlington moved for new trial on grounds that the jury had been subjected to improper outside influence. At a hearing on Burlington's motion for new trial, the parties stipulated that Newsom told Cain about the circumstances of his dismissal and that Cain passed that information on to some, if not all, of the other jurors. The record also contains Cain's affidavit, which states that she called Newsom to find out why he had been dismissed. According to Cain's affidavit, Newsom explained that "his father-in-law had a bad experience with a compensation claim while working for a company that merged with Burlington." The trial court found that improper contact occurred but did not work an injury on Burlington sufficient to rise to the level of jury misconduct.
The trial court's decision to grant or deny a motion for new trial based upon jury misconduct is in the sound discretion of the trial court. In re J.F., Jr., 948 S.W.2d 807, 810 (Tex. App._San Antonio 1997, no writ). To obtain a new trial on the basis of jury misconduct, the complaining party has the burden to prove:
(1) the misconduct occurred; (2) it was material; and (3) that, based on the record as a whole, injury probably resulted to the complaining party. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985); see Tex. R. Civ. P. 327(a). To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he would otherwise have done on one or more issues vital to the judgment. Pharo v. Chambers County, 922 S.W.2d 945, 950 (Tex. 1996).
We will assume, without deciding, that jury misconduct occurred in this case. We nevertheless conclude that any misconduct was harmless. It does not reasonably appear from the record that t
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