Armstrong v. James & Co.

• Citation: 136 N.W. 686,155 Iowa 562
• Parties: ARMSTRONG v. JAMES & CO. ET AL.
• Decision Date: 08 June 1912
• Court: United States State Supreme Court of Iowa

155 Iowa 562

136 N.W. 686

ARMSTRONG

v.JAMES & CO. ET AL.

Supreme Court of Iowa.

June 8, 1912.

Appeal from District Court, Poweshiek County; B. W. Preston, Judge.

Action to recover a sum of money paid under duress. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.

Weaver, J., dissenting.

J. H. Patton, for appellants.

Bray & Shifflett, for appellee.

DEEMER, J.

Plaintiff claims that defendants by fraud and duress and threats of imprisonment induced her to pay them the sum of $92, which amount she seeks to recover in this action. Defendants interposed a general denial, and also pleaded that the amount paid them was by way of settlement of a debt justly due them from plaintiff. Some time after suit was commenced one of defendants, to wit, Elias James, filed a counterclaim against the plaintiff for maliciously prosecuting him for the crime of maliciously threatening to accuse plaintiff of a crime. It is alleged that the prosecution ended with the acquittal of said defendant on September 26, 1910, which was something like two months after plaintiff commenced this action. Plaintiff moved to strike this counterclaim, and her motion was sustained. Upon the issues joined, the cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $100.27. Defendants appeal.

[1] 1. Complaint is made of the ruling on the motion to strike. As the counterclaim was on behalf of one of the defendants only, and as the prosecution complained of was not ended until after plaintiff commenced her action, and the defendant's cause of action had not matured when the suit was commenced, the ruling on the motion was manifestly correct. Code, § 3570; Jenkins v. Barrows, 73 Iowa, 438, 35 N. W. 510;Bank v. Jennings, 89 Iowa, 230, 56 N. W. 494.

2. The verdict has such support in the testimony that we are not justified in interfering therewith.

[2] 3. The jury went out on November 15, 1910, and, failing to agree, they were called into court about 9 o'clock a. m. on the 16th, and the following occurred as shown by the record:

“Court: Gentlemen of the jury, you have been out now about 15 hours, and I will be glad if the court can help you. What is the trouble?

Foreman: Your honor, we have not been able to agree. We have considered the evidence in every possible way that we can, and there seems to be a difference of opinion.

Court: Is there any trouble, Mr. Foreman, with reference to the instructions? A. I can't see any.

Court: I would like to know how you stand. Just a moment. I don't want to know how many on one side or how many on the other--that is, I just want the figures, whether six to six; four to eight; seven to five. Give me the numbers without telling me on which side each number is.

Foreman: Eight to four. Q. How long have you been that way? A. Since the first ballot.

Court: You will understand that the court has no right to express an opinion at all. If I did, it would be reversible error, and the Supreme Court would reverse the case, because that is a question for the jury. The court has no right to instruct the jury except in writing. The court has prepared an additional instruction, which I will read to you:

Additional Instruction. You have now been out about 15 hours deliberating on a verdict without being able to agree. Of course, the main thing in the trial of this lawsuit, as in any other, is to arrive at the right thing and to do justice between the parties; but I want to put this matter up to you plainly, and ask you to go over some figures with me to show you the importance of your agreeing on a verdict. The court is entirely powerless, and it is up to the jury alone. The judgment of the court is that it would be better for both parties to this suit for you to agree on a verdict one way or the other. But there are other parties that are interested, and I want you to think of these propositions. We have about 30 jurors at $2.50 per day. All of these are not on this jury, but are waiting at the expense of this county and the taxpayers. It has already taken two days to try this case, and you will have to count another day, to-day, because it is not likely that we can get a jury in another case so that we should figure three days at an expense of $75 per day for jury fees alone, besides other court expenses, attorney fees, etc., and a disagreement by you and a retrial will, of course, double these expenses; besides, the next case for trial is a state case, where there are 50 or 60 witnesses that must in all probability be paid by the county, so that I ask you, in view of all these things, that you redouble your efforts to agree upon a verdict, and treat this as a business proposition without any levity or anything of that kind. The issues of fact are not complicated, nor is the law difficult. It seems to the court that you ought to agree. All the jurors should examine the issues submitted to you with candor and with a proper regard and deference for the opinion of each other. A proper regard for the judgment of other men will greatly aid us in forming our own. This case must be decided at some time. You jurors have been selected in the same manner that any future jurors will be, and there is no reason to believe that any jury better qualified will be chosen, or more or clearer evidence will be adduced. Every juror should listen to the arguments of the other jurors with a disposition to be convinced by them. If the jurors differ in their views of the evidence from the larger number of their fellow jurors, such difference of opinion should induce the minority to doubt the correctness of their own judgments, and cause them to scrutinize the evidence more closely and to re-examine the grounds of their opinions. Your duty is to decide the issues of fact which have been presented to you, guided by the instructions of the court as to the law, and arrive at a verdict if you can conscientiously do so, and in conferring together you should bear in mind that the jury room is no place for pride of opinion, nor for espousing and maintaining, in a spirit of controversy, either side of a cause.”

In ruling on the motion for a new trial, which had for one of its assignments the giving of this additional instruction, the court made the following record upon defendants' request to examine some of the jurors to show that they were coerced into an agreement: “The court declines to hear the testimony for the reason that it is the court's idea that it is a matter which inheres in the verdict, and the jurors could not be permitted to say now that they did not follow the instructions of the court. The fact is that the amount in controversy is small; that Montezuma is an out of the way place, that is, a place hard to get to, and, there being a large number of witnesses and jurors in attendance, the court was anxious to get a verdict in this case, and, there being no complicated questions of either law or fact, it seemed to the court that the jury should agree one way or the other without any trouble. The jury retired for deliberation Tuesday, November 15th, about 5:45 p. m., and were out all night, and on the morning of the 16th, about 9 o'clock, the court called them into court and gave them the first additional instruction, that being the long instruction, where the court urged them to get together, if they could. After the jury had retired again, after one additional instruction was read, the bailiff came to the court and said the jury wanted a dictionary, which the court declined to authorize. They then sent to the court, by the bailiff, the note attached to the second additional instruction, asking for a more specific definition of duress. The court prepared an additional instruction, which, by agreement of both parties, was sent to the jury by the bailiff, without the jury being called into court. This was about 11 o'clock on the morning of the 16th of November. A few minutes before 12:00 o'clock, on the 16th, the court told the bailiff to bring the jury into court, and was about to discharge them as we were then just impaneling another jury in the next case, and there were not enough other jurors to impanel the jury. The jury sent word to the court that, if the court would give them a few minutes longer, they thought they would agree, and after lunch, and about 1:30 p. m., the jury returned the verdict, which was entered.”

The second additional instruction referred to in these last quoted remarks in response to the jury's request for a more explicit definition of the word “duress” read as follows: “In response to your written communication you are further instructed that definitions of ‘duress' are, ‘hardship’; ‘constraint’; ‘pressure.’ Legally it is a state of compulsion or necessity in which a person in influenced by threats, menaces, and the like to do an act which is not the free will of such person, but whose will is overcome thereby. Read this instruction in connection with the other instructions given you.”

These instructions, remarks, and proceedings are very strongly challenged, and it is insisted that they had the effect of coercing a verdict which would not otherwise have been rendered. Conceding that these instructions go to the verge of propriety, we are not disposed to reverse because thereof. The instruction complained of did not result in an immediate verdict. On the contrary, the jury retired, and, after reconsidering the case for a number of hours, came back into court for a more explicit instruction as to what was meant by duress. An instruction was given pursuant to this request, and very shortly thereafter a verdict was returned. If there be any presumptions about the matter, it is quite logical to infer that this additional and final instruction is the one which brought the verdict. The request from the jury for this additional instruction clearly indicates that they were considering the merits of the case, and had got at the very vitals...