Aetna Insurance Company v. Grube

• Decision Date: 01 January 1861
• Citation: Aetna Insurance Company v. Grube, 6 Minn. 32 (Minn. 1861)
• Parties: THE AETNA INS. CO. vs. WILLIAM GRUBE.
• Court: Minnesota Supreme Court

6 Minn. 32

THE AETNA INS. CO. vs. WILLIAM GRUBE.

Supreme Court of Minnesota.

Appeal from order of the district court, Ramsey County.

Points and authorities for appellant: —

1. The separation of the jury was not obtained through a compulsory or fraudulent agreement as to their verdict, after the case had been submitted to them, and they did not

partake of intoxicating liquors in the jury room. The conclusions of the court below in these respects are not sustained by the record and affidavits.

2. But every irregularity which would subject the juror to censure, whether in drinking spirituous liquors, separating from their fellows, or the like, should not overturn the verdict, unless there be some reason to suspect that the irregularity may have had an influence on the final verdict. 2 Gra. & W. New Trials, 564; 1 Hill, 207; 6 Me., 379; 2 Sumner, 21; 8 Grat., 637; 13 Conn., 445; 2 Gra. & W. New Trials, 593-4.

3. Notwithstanding a misdirection, if the court can see that justice has been done, and that a new trial ought to produce the same result, a new trial will not be granted. 1 Gra. & W. New Trials, 301, and cases cited; 2 Salk., 644; 2 Term R., 4; 5 Mass. 1; 2 Pick., 310; id., 145; 4 Day, 42; 5 Day, 479.

4. All the contents of the application relating to the description of the premises insured were warranties, except, perhaps, the estimate of the valuation, and this, under the fourth condition of the policy, (folio 10) is a representation, and its materiality was properly left to the jury. Angell Ins., 178, § 147; id., 170, § 141; 16 Wend., 92; 5 Hill, 188; Roberts v. Chenango Ins. Co., 3 Hill, 501; Angell Ins., 184, § 152.

Points and Authorities for respondent: —

1. The misconduct of the jury, as shown by the affidavits, was sufficient grounds for a new trial. Comp. Stat., 559, ch. 61, § 23; 1 Gra. & W. New Trials, 86, 95, 99-103; Horton v. Horton, 2 Cow., 589; Brant v. Fowler, 7 Cow., 562; People v. Douglas, 4 Cow., 26; Dana v. Roberts, 1 Root., 134; Oliver v. Trustees of Springfield, 5 Cow., 283.

2. There was no misrepresentation or concealment, the value of the premises being stated as an estimate, there being no answer to the interrogatory in the survey as to value, and the size of the building alleged to be misrepresented was truly stated, the answer of the plaintiff upon the subject in the survey referring to the main building, the omission to state the dimensions of the kitchen in question was not a concealment, being open to inspection, nor material, being not inquired into. Angell Ins., § 150, and authorities; Dennison v. Thomaston M. Ins. Co., 20 Maine, 125. Nor was the valuation, though above the true value, sufficient to avoid the policy, this not being a valued policy. See definition, § 253, Angell Ins., and Condition 4 of Policy.

3. The court erred in charging upon the question of misrepresentation of value, there being no misrepresentation shown, and also in applying the rule of misrepresentation to the facts in the case.

4. The court erred in his charge upon the subject of warranty, the same having no application to the case, and being erroneous in law. Angell Ins., §§ 142, 147; id., §§ 140, 141; Trench v. Chenango County Mutual Ins. Co., 7 Hill, 122.

Van Etten & Officer, for appellant.

Horn & Galusha, for respondent.

FLANDRAU J.

After the jury had retired and been in consultation for some time, they announced to the officer that they had agreed upon their verdict, which they sealed up, and were thereupon permitted to separate. This was a deception practised by the jury upon the officer, with a view of obtaining their release for the night. They had not agreed upon a verdict at all, but, on the contrary, two of the jurors protested against the verdict, or, as it was stated by them in court, "voted for the verdict under protest." Whether this was a mere mental protest, unknown to their fellows of the panel, or was openly asserted, does not clearly appear, nor does it make much difference, except so far as it would go to implicate the whole jury in the fraud, or only the two protestants. It is clear that, at the time the jury separated, no verdict had been agreed upon, ten of the jurors being for the defendant, and two entertaining different views. When the jury appeared in court next morning, this condition of their deliberations, at the time of their separation, was confessed by them, one of the protestants adhering to his views, and refusing to join in the verdict, and the other yielding and assenting to the same. Now what produced the change in this juror? He had not been in consultation with his fellows since the separation, for they had not met as a jury. He must have either made up his verdict from his own reflections, in the absence of his fellows, or from improper influences brought to bear upon him, neither of which is the decision contemplated by the law. A jury is a body of twelve men assembled for consultation, argument, and mutual assistance in arriving at the truth, and no single member of it has the right to make up his verdict apart from, and unaided by, the others. It is very difficult to distinguish this case from that of Oliver v. The Trustees of Springfield, 5 Cow., 283. There, the jury procured their separation by a similar artifice practised upon the officer, and some of them were in hearing, during their separation, of conversation about the suit in which they were engaged. Here, a radical change had been produced in the mind of one of the jurors during the separation, which is, to say the least, strong ground for suspicion of abuse. We cannot give our consent to verdicts procured by such means. There is a want of that dignity, decorum, and propriety, which should characterize the administration of justice, about such proceedings, that if tolerated would soon withdraw from our judicial tribunals that popular reverence which is the strong arm of the law in a republic. The judge was right in his decision upon the irregularity of the verdict.

This leads us to an examination of the question of whether the facts stated in the written application were absolutely warranted to be true as stated, or were only warranted to be true so far as they materially affected the risk. In the policy occurs this provision: "And that this policy is made and accepted in reference to the conditions hereto annexed, which are to be...