Hall & Co. v. Robison , 25 Iowa 91 ( 1868 )

Cole, J.

l. verdict aSdOTUsof jurors. The overruling of the motion for a new trial, is substantially the only error complained of. This motion is based upon three grounds: First, upon newly discovered evidence; and as to this, £pe eoimse] concede in argument the failure of defendant to make a case for new trial under the rules heretofore recognized and enforced by this court. Second, upon the affidavits of two of the jurors, who tried the cause, setting forth the basis upon, or calculation by means of which they, according to their estimate of the testimony, arrived at the verdict rendered; they do not even state that the basis or calculation set forth was the one adopted by the whole jury. These affidavits were, on motion of the plaintiffs, stricken from the files, and properly so, under the rule laid down by this court in Wright v. The Ill. & Miss. Tel. Co. (20 Iowa, 185), and approved and followed in Hendrickson v. Kingsbury (20 id. 380). The weight given to the testimony, the calculations and judgments of the jurors, and the like, necessarily inhere in the verdict itself, and are not proper to be shown by affidavit of jurors to impeach or defeat their verdict.

s _faots -inhere in the without dlce' Third, upon the affidavit of one of the jurors “ that while the jury were in their room consulting as to their verdict, I stated to one or more of the jury that one MhGeehan told me that he had one of rakes from M. S. Kobison (defendant) and paid fifty-five dollars for it, and bragged tremendously on the working of the rake.” This affidavit was also stricken from the files on motion of plaintiff’s counsel. It was error to strike this affidavit from the files, since it was an affidavit of a fact occurring in the jury-room, not essentially inhering in the verdict itself. Suppose the plaintiff had stepped into the jury-room and stated to the whole jury the same matter, and it had been heard or considered by them. No reasonable question could arise under the rule heretofore laid down as to the legality or propriety of receiving the affidavit of a juror as to such fact. A juror has no right to give testimony or state facts outside the case made in court to his fellow jurors, after their retirement and for their consideration, in making up the verdict in “the case. The only proper way in which facts known to a juror can be given to his fellow jurors, is by having such juror sworn and testify as a witness.

But in this case the further question remains as to whether the defendant has been prejudiced by the error of the court in striking the affidavit from the files. This involves the inquiry whether the affidavit states facts entitling the defendant to a new trial. In determining this question, it is proper to remark that a very different consideration should be given this case than if the same matter had been stated to the jury by the plaintiffs, their attorney or another person in their interest. In such case, the fraud evinced by such conduct might entitle the opposite party to a new trial, without a very definite inquiry as to prejudice resulting from it. In this case, however, there is no suggestion of fraud or bad faith on the part of the juror, and the statement made is to be measured by the exact language of the affidavit showing it. By reference to it, as copied above, it will be seen that the statement was not made by the juror as of his own knowledge, nor to the jury collectively but to one or more of the jury; the affidavit does not state that the matter had any influence with the juror to whom it was stated, nor with him even in making up his verdict; nor is it shown to have been stated to the juror as a fact to be considered; affidavits of two other jurors were taken for use in the motion for a new trial, and no reference or showing is made by them, or either of them, to the matter stated ; the affidavit of the “ one or more of said jury,” to whom the matter was stated, is not taken, nor is there any showing or ground for inference of prejudice to defendant by reason of the matter stated by the juror. In our view, the affidavit of the juror fails to make a case requiring a new trial to be granted. It follows, therefore, that, although there was error in striking the affidavit from the files, it was error without affirmative prejudice shown, and hence does not call for a reversal. It is proper to remark that the transcript does not contain all the evidence, and hence we cannot tell whether the verdict is contrary to evidence or not. No exception was taken to the instructions, and hence no questions arise thereon for our review.

Affirmed.