                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 96-50859
                         Summary Calendar



                  CHARLES CADDELL, Individually
          and on behalf of his mother, Mildred Caddell,

                                               Plaintiff-Appellant,

                              VERSUS

                      WAL-MART STORES, INC.,

                                               Defendant-Appellee.



          Appeals from the United States District Court
                for the Western District of Texas
                          (MO-96-CV-82)

                           April 9, 1998

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:1

     Charles Caddell had a shirt taken off his back in an Odessa

Wal-Mart store when he was detained as a shoplifting suspect. He

appeals from a jury verdict that found Wal-Mart was not liable for
conversion of the shirt.    He also appeals the district court’s

grant of a partial summary judgment dismissing his claims on behalf

of his deceased mother under the theories of negligent infliction

of emotional distress and bystander recovery and the denial of his

motion for a new trial based upon jury misconduct and newly

     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
discovered evidence.

     We have carefully reviewed the record and considered the

briefs of the parties.    There was sufficient evidence presented

that a reasonable juror could find that the Baja shirt alleged to

have been shoplifted was not owned by Caddell and thus was not

converted by Wal-Mart. See Pagan v. Shoney’s, Inc., 931 F.2d 334,

337 (5th Cir. 1991).

     Further, the district court did not err in dismissing claims

brought on behalf of Mildred Caddell. Texas law does not recognize

negligent infliction of emotional distress as a cause of action.

Nor did the court err in finding that no dispute of material fact

existed that she did not witness a serious or fatal accident and in

dismissing her bystander recovery claim.

     Whether a new trial should be granted because of alleged jury

misconduct is left to the sound discretion of the trial court and

must be decided on an ad hoc basis.        Vezina v. Theriot Marine

Service, Inc., 554 F.2d 654 (5th Cir. 1977).     In a review of the

hearing conducted on the motion for a new trial, we find no abuse

of discretion in the denial of that motion.

     Accordingly, the decisions of the district court are AFFIRMED.




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