Alexander v. Humber

• Decision Date: 19 January 1888
• Citation: 6 S.W. 453,86 Ky. 565
• Parties: ALEXANDER et al. v. HUMBER.
• Court: Kentucky Court of Appeals

6 S.W. 453

86 Ky. 565

ALEXANDER et al. v. HUMBER.

Court of Appeals of Kentucky.

January 19, 1888

Appeal from circuit court, Owen county.

W Monfort, Montgomery, Lindsay & Botts, and O'Hara & Bryan for appellants.

E. E Settle and Thos. R. Gordon, for appellee.

HOLT J.

The appellee, Frances Humber, sued the appellants, J. W Alexander and T. L. Martin, for "wrongfully, wantonly, willfully, and negligently" driving a buggy against and over her, when she was walking along a public road. The verdict was: "We, the jury, find for plaintiff $1,000, jointly." Among other grounds presented for a new trial is one to the effect that this was returned by mistake, and that the jury intended to sever the damages, and fix them at $500 against each of the appellants. It appears that the verdict was handed in by the jury without question or objection by any one. Several hours thereafter, the trial judge stated, in open court, that he had been informed by one of the jury that it was not their verdict. Thereupon, and although they had been discharged as to this case several hours, he called them before him and examined them, nearly every one saying that they intended to find $500 against each defendant, and that it was not their verdict. Subsequently their affidavits to the effect above indicated were filed in support of the motion for a new trial; but it was refused. The act of February 14, 1839, allowed a joint or several assessment of damages in an action of trespass. This was in derogation of the general rule of the common law. It was adopted because the conduct of one trespasser is often more wanton and aggravating than than that of another. The Code of Practice contains no such provision. It says nothing upon the subject. The case of Buckles v. Lambert, 4 Metc. (Ky.) 330, decided since its adoption, recognized the statute as then in force, and to this view we adhere. The jury, therefore, had the power to sever the damages; and the question is now presented whether the lower court should, upon the affidavits, have set aside the verdict.

The affidavits of jurors cannot be received to impeach their verdict for misbehavior in themselves or their fellow-jurors. Allard v. Smith, 2 Metc. (Ky.) 297. It is said, however, that this is not the purpose here; but to show that the real verdict was not returned by a mistake in the language used in writing it. After a verdict has been returned in open court, it would open a wide door to trickery, corruption, and fraud to grant a new trial upon the ex parte affidavits of individual jurors as to what the jury intended to do. Public policy requires a court to act with great caution in such a case. It was not proposed in this instance to show by them that there was no verdict; but that the one returned by them, and then read in their hearing without objection by them, was not true. After its rendition they probably mingled with the friends of the respective parties. The matter may have been discussed; and, under such circumstances, a court should be slow to set aside the verdict upon affidavits procured from the jurors by the losing party, and prepared probably by his attorney. If such affidavits are ever to be received it should be with the greatest caution, and only in cases of mistake clearly made out, and free from all misconduct upon the part of the jurors. In this case they intended that the appellee should have a thousand dollars; and they doubtless supposed there would be contribution between the appellants so as to make each pay one-half of the judgment. Certainly they did not intend to use the word "severally" where they said "jointly," as then the verdict would have been for $1,000 against each of the appellants. The facts were before the trial judge; he knew the parties; and conceding that the affidavits of the jurors were, in this instance, within the exception to the general rule, and therefore could properly be considered upon the motion for a new trial, yet we do not feel authorized upon the record as presented to disturb the conclusion reached by him.

Any errors, if there were any, in giving instructions, and in permitting the...