Stone v. Griffin Baking Co. of Greensboro, Inc. , 257 N.C. 103 ( 1962 )

125 S.E.2d 363 (1962) 257 N.C. 103

George David STONE, Administrator of the Estate of Graham Otis Stone, Deceased,
v.
GRIFFIN BAKING COMPANY OF GREENSBORO, Incorporated.

No. 460.

Supreme Court of North Carolina.

May 2, 1962.

Henry M. Whitesides, Gastonia, for plaintiff appellant.

William Joslin and Samuel H. Johnson, Raleigh, for defendant appellee.

PARKER, Justice.

Plaintiff has one assignment of error, and that is to the denial by the court of his motion made at the September 1961 Term, before the judgment was signed, to examine the juror Robert M. Davis and to set aside the verdict and order a new trial, and to the judgment entered at that term, and to the order entered at the subsequent October 1961 Term denying his motion to set aside the verdict and order a new trial, because of the misconduct of the juror Davis.

The granting or denial of a motion for a new trial because of the misconduct of a juror is generally regarded as resting in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion, or as sometimes stated, unless it is clearly erroneous. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1; Annotation 64 A.L.R.2d sec. 14, p. 185 et seq., where many cases from many jurisdictions are cited; 39 Am.Jur., New Trial, sec. 101, Contact between third person and juror.

The discretion with which a trial court is vested, when applied to a court of justice, means, as Lord Mansfield said, "sound discretion guided by law." Rex. v. Wilkes, 4 Burr. 2527, 98 English Reports, Full Reprint, 327, 334; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910.

"It is firmly established in this state that jurors will not be allowed to attack or to overthrow their verdicts, nor will evidence from them be received for such purpose." McCabe Lumber Co. v. Beaufort County Lumber Co., 187 N.C. 417, 121 S.E. 755. "The rule is a salutary one. If it were otherwise, every verdict would be subject to impeachment." In re Will of Hall, supra, 252 N.C. page 88, 113 S.E.2d page 13.

Judge Hall was correct in denying plaintiff's motion at the September 1961 Term to examine the juror Davis. Certainly, Judge Hall's denial of his motion to examine other persons in respect to the alleged misconduct of the juror Davis did not prejudice plaintiff, for the simple reason that plaintiff did not even know who the witnesses were he wanted to examine. Further, Judge Hall did not abuse his discretion in denying plaintiff's motion made at the September 1961 Term for a new trial for the alleged misconduct of the juror Davis, because plaintiff offered no supporting affidavits or other evidence as to the alleged misconduct of the juror Davis, or that he was in any way prejudiced by the alleged misconduct of the juror Davis. Judge Hall's judgment at the September 1961 Term is affirmed.

The judgment entered by Judge Hall at the September 1961 Term was a final one, from which plaintiff appealed to the Supreme Court. This appeal from the final judgment eo instante took the case out of the jurisdiction of the Superior Court. There was no withdrawal of the appeal by plaintiff, therefore, Judge Hall at the subsequent October 1961 Term was functus officio to consider the motion made by plaintiff at that term for a new trial because of the alleged misconduct of the juror Davis, and his order made at that term is a nullity. Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384; Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Strong's N.C. Index, Vol. 1, Appeal and Error, sec. 12. See Purcell v. Southern R. R. Co., 119 N.C. 728, 737, 26 S.E. 161.

However, while we must hold that Judge Hall's order entered at the October 1961 Term is a nullity, we will nevertheless, as was done in Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, "exercise our discretionary power to express an opinion upon the question which the plaintiff attempts to raise" by his appeal from Judge Hall's order rendered at the subsequent October 1961 Term denying his motion for a new trial for the alleged misconduct of the juror Davis.

This is said in 39 Am.Jur., New Trial, sec. 101:

"The rule sustained by the great weight of authority is that a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for new trial by the accused in a criminal case as well as of applications made in civil actions. Clearly, conversation between a juror and a third person which is of a harmless character, unrelated to the matter in issue, and not tending to influence or prejudice the jury in their verdict, will not afford cause for a new trial * * * and if a trial is really fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity which is shown to have done no actual injury. Generally speaking, neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge."

See an exhaustive Annotation 64 A.L.R.2d pp. 158-231, entitled "Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal."

There is nothing in the evidence to indicate that the unknown big man with whom the juror Davis had a conversation in the Raleigh Diner had any relationship of any kind with defendant, or even knew there was such a corporation, or had any interest in the subject matter of plaintiff's suit, or the outcome of the trial. There is nothing to indicate that this unknown big man knew that there was such a case, or that Davis was a juror in the trial of the case, or that the case was being tried. The conversation of this unknown big man with Davis was in a public eating place, in the presence, at least, of plaintiff, his wife, and two other persons, and had no reference or relation to the case in which Davis was a juror. The conversation was casual, and related solely to a not unusual topic of conversation, and that is, how to avoid jury service. There is nothing in the conversation to indicate there was any intention on the part of this unknown big man to influence the judgment or action of Davis as a juror. It is manifest, the conversation did not influence Davis' action as a juror, because he did not hang the jury. There is nothing in the evidence to suggest that defendant prompted the conversation of the unknown big man with the juror Davis, or that any injustice or prejudice was done to plaintiff. Clearly, the conversation between the unknown big man and the juror Davis was of a harmless character, and afforded no basis for the trial judge to exercise his discretion to set aside the verdict and order a new trial, even if all the evidence before us had been presented to Judge Hall at the September 1961 Term before the signing of the judgment at that term.

Judge Hall's order entered at the October 1961 Term is a nullity. "Where such defect of jurisdiction is apparent the court will of necessity so declare it ex mero motu." Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Bailey v. McPherson, supra.

The order entered at the October 1961 Term will be vacated. The judgment entered at the September 1961 Term is

Affirmed.