After Hour Welding, Inc. v. Laneil Management Co.

• Decision Date: 19 October 1981
• Docket Number: No. 80-1246,80-1246
• Citation: 105 Wis.2d 130,312 N.W.2d 859
• Parties: AFTER HOUR WELDING, INC., Plaintiff-Respondent, v. LANEIL MANAGEMENT CO., and Shoreland Manor Co., Defendants-Appellants. *
• Court: Wisconsin Court of Appeals

Page 859

312 N.W.2d 859

105 Wis.2d 130

AFTER HOUR WELDING, INC., Plaintiff-Respondent, v. LANEIL MANAGEMENT CO., and Shoreland Manor Co.,

Defendants-Appellants. ^*

No. 80-1246.

Court of Appeals of Wisconsin.

Submitted on Briefs July 15, 1981.

Opinion Released Oct. 19, 1981.

Opinion Filed Oct. 19, 1981.

M. L. Eisenberg & Associates, Milwaukee, for defendants-appellants.

Poulos, Sengstock & Wilkoski, S.C., and John J. Kastl, West Allis, for plaintiff-respondent.

Before DECKER, C. J., CANNON, J., and HANLEY, Reserve Judge.

DECKER, Chief Judge.

Did the trial court err in denying the defendants' motion for a new trial due to alleged misconduct of the jury? We conclude that the issue is governed by sec. 906.06(2), Stats., and that neither the affidavit nor the hearing conducted by the trial court satisfy the public policy requirements of the statute. We affirm.

A jury trial resulted in a verdict for the plaintiff against the defendant corporations. Sydney Eisenberg was an officer of the defendant corporations and testified at trial. Before motions after verdict, defendants moved for a new trial claiming jury misconduct. ¹ The motion was supported by the affidavit of a dissenting juror that:

During the course of the trial and during the time of my service on the jury I heard other jurors say:

1. Mr. Eisenberg is "a cheap Jew."

2. Alan Eisenberg, Mr. Sydney Eisenberg's son, defended the Outlaws. The tone and the attitude of the statement about Alan Eisenberg was derogatory.

3. "They" (Alan and Sydney) were involved in the suicide of Judge Krueger. The tone and attitude conveyed the idea that this was something bad the Eisenbergs had done.

The trial court rejected the motion and entered judgment on the verdict.

Defendants appeal, contending that the affidavit establishes that jurors were untruthful during voir dire, and that the alleged statements prejudiced the jury.

VOIR DIRE

Defendants contend that the affidavit shows that jurors were untruthful because they allegedly failed to affirmatively respond to an inquiry on voir dire with respect to knowledge of Sydney Eisenberg. We reject this contention because the trial court has not found that such an inquiry was made. The record suggests that the voir dire was not recorded and, in any event, if recorded it has not been transcribed and incorporated in the record transmitted to this court.

IMPEACHMENT OF JURY VERDICT

Defendants contend that a new trial must be granted because the affidavit establishes that the verdict was the product of juror prejudice and matters outside the record.

The rule against a juror impeaching his own verdict dates from the eighteenth century, Vaise v. Delaval, 1 T.R. 11, 99 Eng.Rep. 944 (K.B. 1785), and testimony as to extraneous information and improper outside influences on the jury has historically been considered incompetent evidence. Wisconsin has recognized the rule since at least 1855. Quarles v. State, 70 Wis.2d 87, 91, 233 N.W.2d 401, 403 (1975) (citing Birchard v. Booth, 4 Wis. 85 (*67) (1855)). Based on public policy reasons, including prevention of the harassment of jurors, the rule insures the jury's freedom of discussion during deliberations, prevents jury tampering, encourages finality of verdicts, and avoids a deluge of meritless post-verdict applications based on alleged juror misconduct. McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 784-85, 59 L.Ed. 1300 (1915); King v. United States, 576 F.2d 432, 438 (2d Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 155, 58 L.Ed.2d 154 (1978); United States v. Wilson, 534 F.2d 375, 378 (D.C.Cir.1976); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). The desire to avoid injustice and Section 906.06(2), Stats., governs attempts to impeach a verdict through the use of juror affidavits or testimony:

redress the grievances of private litigants competes against the rigid application of this rule of incompetency. McDonald, supra, 238 U.S. at 268-69, 35 S.Ct. at 784-85; Wilson, supra, 534 F.2d at 378-79.

(2) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received.

This statute is virtually identical to Rule 606(b) of the Federal Rules of Evidence, which codifies the common law as it has developed in many jurisdictions. United States v. Marques, 600 F.2d 742, 746-47 (9th Cir.), cert. denied, 444 U.S. 1019, 100 S.Ct. 674, 62 L.Ed.2d 649 (1979). Before the adoption of sec. 906.06(2), Stats., the Wisconsin common law was more restrictive. ² We look to interpretations of Rule 606(b) for interpretive assistance.

Like F.R.E. 606(b), sec. 906.06(2), Stats., attempts to accommodate the policies for and against impeachment of jury verdicts by an exception to the incompetency rule for juror testimony about extraneous information and improper outside influences; it prohibits inquiries into the mental processes of the jurors, but allows juror testimony relating to overt acts, occurring inside or outside the jury room, which may be within the knowledge of others. See Marques, supra, 600 F.2d at 747; Poches v. J.J. Newberry Co., 549 F.2d 1166, 1169 (8th Cir. 1977) (per curiam); United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959). A juror may also testify as to the occurrence of improper influences or the presence of extraneous prejudicial information, but may not testify as to the effect these had on the jurors. Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892); U. S. ex rel. Owen v. McMann, 435 F.2d 813, 819 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); State v. Kociolek, 20 N.J. 92, 118 A.2d 812, 816 (1955). This distinction recognizes the practical difficulty of proving the actual effect of such misconduct on the jurors' minds, in light of the difficulty of recreating even one's own thought processes, let alone those of others. Kociolek, supra, 118 A.2d at 816. The overt facts to which a juror may testify include misconduct by the jurors themselves. McMann, supra, 435 F.2d at 819-20.

A motion for a new trial is directed to the discretion of the trial court and will not be disturbed on appeal absent a showing that the trial court abused its discretion. Priske v. General Motors Corp., 89 Wis.2d 642, 662-63, 279 N.W.2d 227, 236 (1979); Ballas v. Superior Mutual Insurance Co., 13 Wis.2d 151, 154, 108 N.W.2d 192, 193 (1961). If the trial court proceeds on an erroneous view of the law or fails to demonstrate consideration of appropriate factors for the exercise of its discretion, then that is itself an abuse of discretion. Priske, supra Federal applications of the rule appearing in sec. 906.06(2), Stats., have held that the party attempting to overturn a verdict by the use of juror testimony or affidavit must show that:

89 Wis.2d at 663, 279 N.W.2d at 236; Ballas, supra, 13 Wis.2d at 154, 108 N.W.2d at 193. To impeach a verdict by attacking a juror's fairness, the party must produce clear and convincing evidence. Van Matre v. Milwaukee Electric Railway & Transport Co., 268 Wis. 399, 410, 67 N.W.2d 831, 836 (1955). Because jurors are incompetent to testify with respect to their mental deliberations, direct evidence with respect to the effect of bias, prejudice or other misconduct will seldom be admissible. Thus, the prejudice to the moving party will [105 Wis.2d 137] usually be a question of law which is not accorded deferential review by this court.

(1) the evidence is competent within the meaning of the rule;

(2) the evidence is sufficient to provide substantive grounds on which to set aside the verdict; and

(3) prejudice to the moving party resulted from the misconduct.

Blake v. Cich, 79 F.R.D. 398, 402-03 (D.Minn.1978). ³ Thus, there are evidentiary and substantive law requirements to be met. These requirements overlap and courts have not always recognized the distinction between the substantive and evidentiary questions. Gereau, supra, 523 F.2d at 150.

We conclude that these requirements should be met by a party attempting to overturn a verdict pursuant to sec. 906.06(2), Stats., and therefore address the evidentiary and substantive questions in considering the juror's affidavit filed in this case.

RELIGIOUS PREJUDICE

Appellant alleges that religious prejudice appeared in the trial when one juror remarked that Mr. Sydney Eisenberg was "a cheap Jew." Although "cheapness" is a subjective judgment that ranges from the spendthrift's view of frugality to the miser's view of generosity, in context the phrase "a cheap Jew" is a stereotyped appeal to religious prejudice that should not be permitted to be considered by jurors in the discharge of their oaths to give a true verdict according to the law and the evidence given in court. Sec. 895.39, Stats.

We assume for the purposes of this discussion that this allegation involves an overt action to which a juror is competent to testify under sec. 906.06(2), Stats. ⁴ When jurors manifest religious, racial, ethnic, or sexist prejudices by overt acts, courts have...