Hooton v. Jarman Chevrolet Co. , 135 Or. 269 ( 1931 )

ON THE MERITS (296 P. 36) In Banc. The single point argued here relates to the ruling of the court upon defendants' motion for a new trial. The motion avers:

"That during the progress of said trial the Coos Bay Times, a daily newspaper of general circulation, published in Marshfield, Coos county, Oregon, published a news item stating that one Nathaniel G. Anderson was an adjuster with the Oregon Automobile Insurance Company, and that he was here transacting business in connection with the above entitled case, all as will more particularly appear from the newspaper clipping attached hereto and made a part hereof, and marked Exhibit A.

"2. That during the progress of said trial and before the verdict was returned James Nowlin, a juror in said case, told one E.W. Sullivan that he had made up his mind to return a verdict for the plaintiff because the defendant was insured against such damages as were involved in this case, as will more particularly appear from affidavits of said James Nowlin and said E.W. Sullivan, marked Exhibits B and C respectively."

In his affidavit, Juror James Nowlin states:

"That I was one of the jurors duly empaneled to try the above entitled cause, and that shortly after said trial was begun and before the case was submitted to the jury, I learned that the defendants were insured against loss or damage arising out of circumstances and facts upon which the above entitled case was based, and that such knowledge on my part influenced me to return a verdict in favor of the plaintiff * * *. I expressed the above-mentioned knowledge and information to one E.W. Sullivan, and informed him that I would be influenced by such knowledge in returning a verdict in said case."

Affiant E.W. Sullivan states:

"That during the progress of the trial of the above entitled case one James Nowlin, a juror duly empaneled to try said case, and before the submission thereof to the jury for determination, told me that immediately after the trial began he made up his mind as to what verdict he would vote for and that he was influenced against defendants by the fact that the defendants carried insurance for such accidents."

M.W. Skipworth, of counsel for defendants, says, in his affidavit, that:

"* * * during the progress of the trial * * * the attorneys for the defendant had no knowledge of the matters set forth in the attached motion and affidavits for new trial and that said facts were not learned until after the verdict was rendered therein."

The motion for a new trial was denied.

We have no information as to how, when or where Nowlin obtained the knowledge that the defendants carried insurance, nor have we any knowledge or information as to whether the newspaper item referred to above was read by Nowlin or by any juror. Affiant E.W. Sullivan states that Nowlin made the declarations attributed to him "during the progress of the trial"; but he does not inform us whether such knowledge was or was not communicated to the defendants herein. While one of the attorneys makes an affidavit to the effect that "the attorneys for the defendant had no knowledge of the matter set forth in the attached motion," and that the facts set forth in such affidavits were unknown to them prior to the rendition of the verdict, yet neither he nor any one else claims that the juror's misconduct was unknown to the defendants. That statement alone is insufficient; nor is it strengthened by any matter appearing of record. With respect to the sufficiency of motions for a new trial upon the ground of misconduct of the jury, an eminent authority has written:

"* * * The motion must particularly state the nature of the alleged misconduct, when and where it occurred, give the names of the participating jurors, or otherwise clearly identify them; and it must also affirmatively allege that the mover and his counsel were ignorant of such misconduct until after the trial": 2 Thompson on Trials (2d Ed.), § 2759 (b).

So far as the record is concerned, it may be that the defendants herein knew of Nowlin's declarations.

Again we find, in 46 C.J., pp. 374, 375:

"Where a motion for a new trial is based upon the ground of disqualification of a juror, incompetency of a juror to act in the particular case, misconduct of a juror or jurors affecting the outcome of the trial, or misconduct of the prevailing party or his attorney, it is usually required that there shall be affidavits of the moving party and of his attorney showing that, during the former trial, both the moving party and his attorney were ignorant of the facts which are relied on as furnishing ground for a new trial. The reason for this requirement is that any objection because of such matter is regarded as waived if the party claiming to have been prejudiced thereby fails to raise objection at the first opportunity, and it has therefore been held necessary that the affidavits should show when the moving party or his attorney first became aware of such misconduct."

As to the necessary showing required to support a motion for new trial grounded upon misconduct of jurors, it is said:

"It is usually required that a motion for new trial on the ground of misconduct of a juror or jurors must be supported by affidavits of the attorney for the moving party as well as of the party himself, which must clearly and positively set forth the facts constituting the alleged misconduct * * *. The affidavits should state the names of the offending jurors if it is possible to do so, in order that the opposing party may have an opportunity to deny or explain the charges": 46 C.J., 372.

To similar effect are Tucker v. Salem Flouring Mills Co.,13 Or. 28 (7 P. 53), and Osmun v. Winters, 30 Or. 177 (46 P. 780). In the latter case it is said:

"``A party cannot know, during the trial, a fatal objection arising from the misconduct of a juror upon the trial, and keep silence, and take advantage of it in the event of an adverse verdict. He is not permitted to speculate upon the chances of a verdict.' This doctrine is supported by numerous cases and appears to be well settled. See State v. Tuller, 34 Conn. 280;Consolidated Ice Mach. Co. v. Trenton Hygeian Ice Co., 57 Fed. 901; Cogswell v. State, 49 Ga. 103; Martin v. Tidwell,36 Ga. 345; Stampofski v. Steffens, 79 Ill. 306; Hussey v. Allen,59 Me. 269; Rowe v. Canney, 139 Mass. 41 (29 N.E. 219); Koesterv. City of Ottumwa, 34 Iowa 41; Gurney v. Minneapolis Ry. Co.,41 Minn. 223 (43 N.W. 2); Hill v. Greenwood, 160 Mass. 256 (35 N.E. 668)."

For the reason that the defendants failed to file the proper showing as to the time the information from the delinquent juror was received by them, we affirm the judgment of the lower court in denying the motion for a new trial.

RAND, J., dissents.