Opinion
No. 11844.
April 21, 1947.
Appeal from the District Court of the United States for the Western District of Texas; Charles A. Boynton, Judge.
Suit under the Texas Compensation Law by T.T. Orren, next friend for Tommy Gene Orren, a minor, against the Pacific Employers Insurance Company. From a judgment on a jury verdict awarding benefits to plaintiff, defendant appeals.
Affirmed.
Tom Sealy, of Midland, Tex., for appellant.
John J. Watts, of Odessa, Tex., for appellee.
Before McCORD, WALLER, and LEE, Circuit Judges.
The appeal is from a judgment on a jury verdict awarding benefits under the Texas Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq.
Plaintiff's evidence is sufficient to support the verdict. Appellant complains, however, of remarks made by two of the jurors during deliberations of the jury, and asserts that the verdict should have been set aside by the trial court on the basis of affidavits secured from two of the jurors. Certainly, jurors may use their common knowledge and experience in weighing the evidence in a case. Blue Diamond Bus. Co. v. Hale, Tex.Civ.App., 69 S.W.2d 228. The attempt to impeach the verdict of the jury was improper and does not meet with our sanction. In overruling the motion for a new trial the court committed no error. Eagle Lake Improvement Co. v. United States, 5th Cir., 160 F.2d 182; McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Loney v. United States, 10 Cir., 151 F.2d 1.
The issue was whether Orren had been injured by inhaling hydrogen sulphide gas. During deliberations of the jury, one of the jurors remarked that he knew something of the effects of such gas. He said he knew of an instance where a man had been killed and another made seriously sick by inhaling the gas. There was also sharp dispute in the medical testimony as to whether Orren had developed tuberculosis. A juror remarked during deliberations that the fact that Orren had gained weight would not preclude the existence of tuberculosis — the juror stating that he had a son who appeared to be fat and healthy, but had tuberculosis.
We find no reversible error in the record.
The judgment is affirmed.