D. F. Jones Construction Company, Inc. v. Fooks , 199 Ark. 861 ( 1940 )

Humphreys, J.

Cases numbers 5758 and 5839,'bear-ing the same style and pending in this court, are consolidated for the reason that case number 5839 is a continuation of case number 5758. Case number 5758 is an appeal from a judgment for $5,000 in favor of appellee against appellant in the circuit court of Lawrence county, eastern district, for damages on account of personal injuries received by appellee through the alleged negligence of C. R. Cutrell who was appellant’s employee and foreman, in backing a large caterpillar used in construction work on highway 39, between Rector and Pig*gott, so as to catch appellee’s left foot between the cleats of the caterpillar and a crosstie which appellee and a co-laborer were engaged in pushing or shoving under said cleats so as to prevent the caterpillar from spinning* when power was applied, mashing off his “big toe” and mashing three others so that they had to be amputated.

In this particular case a reversal of the judgment is sought upon two grounds, namely:

(1) That the court erred in giving its oral instruction No. 10 over the objections and exceptions of the appellant, and

(2) The verdict was grossly excessive and was the result of prejudice or passion engendered by the remarks of counsel for appellee in. his closing argument to the jury.

Case number 5839 is in effect a second appeal from the judgment rendered in case number 5758 on the ground of newly discovered evidence after the first motion for a new trial in case number 5758 was filed and overruled.

The second motion for a new trial alleged that one Clyde Robins did attempt and did talk to a number of the jurors who served in the case, and did offer said jurors a bribe to return a verdict for the appellee; that the attempt to fix the jury in this cause apparently resulted in the jury being prejudiced in favor of appellee and destroyed the verity of- the verdict; that the newly discovered evidence was not discovered by appellant for some time after the case had been tried and could not be brought to the court’s attention previous to the time the motion was filed; that the conduct of the parties on behalf of the appellee in this case constituted a fraud on the court and a fraud on appellant and unless the verdict of the jury rendered thereon be set aside by the court, the rights of this appellant will be destroyed. Wherefore, appellant moves the court to set aside the verdict of the jury herein and vacate the judgment on said verdict and grant appellant a new trial.

Appellee filed a response denying- all the allegations in the motion and praying that the motion for a new trial be denied.

The motion and response thereto were supported by affidavits attached and the case was heard upon the attached affidavits which .resulted in the following finding by the court:

“I don’t think, gentlemen, that there is sufficient evidence here to cause any reflection on the verdict of the jury. The attorneys cannot be criticized for trying to determine the kind and character of men that are going to serve on the juries where they have cases to try. 1 had to make investigations, I know, and I think all the attorneys do that, they try to find the prejudices, feelings and everything towards the parties involved in criminal and civil cases. I find no proof here to show the court substantially where the court could find-that this jury has been corrupted. Let the motion for new trial be overruled. ’ ’

The affidavit of Clyde Robins was to the effect that he offered certain jurors who served upon the jury in the case a bribe to return a verdict for the appellee. He was corroborated by two members of the regular jury panel who sat in the case to the extent that he had approached and attempted to bribe them to return a verdict for appellee. Outside of this corroboration practically every statement made by Clyde Robins in his affidavit was contradicted .and it was shown that he was not worthy of belief; but, notwithstanding his bad character, it is not denied that he did approach at least two members of the jury that tried the case and offered to bribe them to return a verdict for appellee. When these jurors were chosen to sit in the case they did not disclose to the court that Clyde Robins had approached and offered to bribe them. They do say they were not influenced, but in view of the fact that they qualified to sit upon the jury they should have disclosed to the court that an attempt had been made to bribe them and should have told the court who offered to bribe them. They qualified on the theory that they had not formed any opinion and that they had not been talked to by anyone relative to the case, whereas they admitted that Clyde Robins had not only talked with them about the case, but had offered them a bribe to decide the case in favor of appellee. The fact that they did not disclose to the court that an attempt was made to bribe them in favor of appellee is a silent circumstance that they were not impartial. After withholding the information from the court that an attempt had been made to bribe them, it was not the proper thing for them to qualify as jurors. They should have disclosed this fact to the court.

Clyde Robins, by his own admission, is ,a jury fixer to the extent of actually offering to buy certain jurors to return a verdict in this particular case as well as in other cases. According to his own admission, he was not only guilty of reprehensible conduct, but he violated the law which prohibits one from bribing juries or attempting to do.so. As this admission was made in open court we presume he has been or will • be prosecuted, as the law provides, under § 3248 of Pope’s Digest. •

The affidavits filed in this case on the second motion for a new trial contain many charges, denials, counter-charges and denials, but from among all conflicts we find it undisputed that Clyde Robins, a self-confessed bribe giver and jury fixer, offered to bribe certain members of the jury who tried this case and that the jurors who qualified and sat in the case did not disclose the attempt to bribe them when qualifying themselves as jurors. It is true that the undisputed statements in the affidavits do not connect the appellee or his attorneys with the conduct, of Clyde Robins, but the fact remains that appellee obtained a judgment against appellant for $5,000 from certain jurors whom Clyde Robins had attempted to bribe. It may be that appellee was entitled to a verdiet and for the amount returned, but when verdicts are obtained from juries by any litigant, it should come from a jury whose members have not been tampered with. Jury trials are vouchsafed and preserved by the constitution of the state in cases at law. The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, but issues involving life and death. The only way to preserve the integrity .of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been, tampered with or attempted to lie tampered with. It is stated in 64 C. J. 1013, in the first part of § 790, that:' “An attempt of a third person to bribe jurors will result in a reversal irrespective of whether or not the attempt was successful.”

We think this a most wise rule and adopt it as the rule in this state irrespective of whether such third persons are interested in the case or whether their attempts are sanctioned by the parties litigant or their attorneys. This court will not affirm a judgment on a verdict returned by a jury which has been tampered with or unduly influenced by parties litigant or by third persons. We regard this rule as necessary to inspire the confidence of the-body politic in the jury system and in order to preserve the integrity of verdicts rendered by juries. The trial court should have sustained the second motion for a new trial and granted same. In view of this conclusion it is unnecessary to comment on the two alleged errors in case number 5758 urged by appellant for a reversal of the judgment as instruction number 10 may not again be given in its present form to the jury, and since the amount recovered, if any, in a new trial of the cause may not be the same as that recovered in this case.

The cause will be reversed and remanded for a new trial on account of the failure of the trial court to grant a new trial of the canse on the second motion filed by appellant.

Grieein Smith, C. J., concurs in part.