Barsh v. Chrysler Corp.

• Decision Date: 30 January 1974
• Docket Number: No. 19765,19765
• Citation: 262 S.C. 129,203 S.E.2d 107
• Court: South Carolina Supreme Court
• Parties: Myrtie C. BARSH, Respondent, v. CHRYSLER CORPORATION, Appellant.

Page 107

203 S.E.2d 107

262 S.C. 129

Myrtie C. BARSH, Respondent, v. CHRYSLER CORPORATION, Appellant.

No. 19765.

Supreme Court of South Carolina.

Jan. 30, 1974.

H. Simmons Tate, Jr., J. Donald Dial, Jr., and Manton M. Grier, Boyd, Knowlton, Tate & Finlay, Columbia, for appellant.

Thomas Dewey Wise, Way, Burkett & Wise, Charleston, for respondent.

LITTLEJOHN, Justice:

The plaintiff-respondent, Myrtie C. Barsh, brought this action against the defendant-appellant, Chrysler Corporation, seeking to recover $7500.00 damages for the destruction of her Chrysler automobile and personal property by fire*. The case was tried based on the allegations of the plaintiff that there was a breach of warranty on the part of the defendant that proximately caused the fire and the resulting damage. The defendant denied that the automobile was defective. All issues were submitted to the jury, which returned a verdict in favor of the defendant. Upon return of the verdict, the jury was immediately polled at plaintiff's request, and each juror stated that the verdict was his own. Plaintiff then moved for judgment n.o.v. or for a new trial, which was denied.

Later the trial judge, on motion of counsel for the plaintiff, granted a new trial on the ground that the jury was guilty of misconduct. The defendant has appealed, alleging error on the part of the trial judge (1) in setting aside the jury verdict and granting a new trial on the testimony of a juror concerning the jury's deliberations, (2) in failing to conduct a full and fair inquiry into the jury deliberations sufficient to ascertain the truth, and (3) in failing to give the defendant adequate notice or an opportunity to be heard before an adverse determination was made on the question of whether the jurors could be empaneled for the purpose of inquiring into to the deliberations.

The motion for a new trial was presented to the trial judge after it was shown that the forelady of the jury had stated that the jury returned a verdict for the defendant because the members of the jury believed that Mrs. Barsh's vehicle was covered by insurance and to render a verdict in her favor would give her a double recovery.

When the motion was made, the jurors had been dismissed from the case but were still members of the jury panel and in attendance at court. They were reseated in the jury box and sworn. The judge proceeded to question the foreclady. In essence she testified that the jurors discussed the insurance issue and that they felt that consideration of the insurance question was proper and gave it much, if not controlling, weight.

He also asked the other jurors if they wanted to make a statement. The reporter indicated a 'negative response.' He then asked if they disagreed with the substance of the forelady's testimony. The reporter again indicated a 'negative response.'

Thereafter, the judge took the motion for a new trial under advisement. Counsel supplied briefs and the judge filed his order setting the verdict aside and granting a new trial, holding:

'The misconduct of the jury was not in rendering the verdict that it did, but in the fact that the verdict had no basis whatsoever in the evidence. It rested wholly on a consideration that was improper, and not a part of the evidence.

'Plaintiff is entitled to a new trial because of the misconduct of the jury, and this Court so concludes.'

Accepting the testimony of the forelady of the jury was contrary to the holding in a long line of cases in this State, following the general rule, that a juror's testimony is not admissible to prove either his own misconduct or that of fellow jurors.

In State v. Parris, 163 S.C. 295, 161 S.E. 496 (1931), statements were made in open court, before the incest trial began, inferring that the defendant had given his own lawyer a mortgage over property which he did not own. After the defendant was convicted and sentenced, counsel (newly employed) came into the case and procured a statement from six of the convicting petit jurors, who had tried the case, to the effect that the information received by them as to defendant's conduct in giving the mortgage to his attorney influenced them in reaching a verdict of guilty. A written request from nine of the jurors was also presented, requesting a new trial because they had grave doubts as to the defendant's guilt. In affirming the lower court's refusal of a new trial, this Court said:

'The statements of the jurors, filed in the lower court, have been submitted in the record to this court. As to these statements, we desire to say that they should not have been presented to, or received by, the court. Even if they had been sworn to, it was improper for them to have been presented or received. In fact, the jurors should not have signed these statements, which, perhaps, they did without understanding that their action was improper. The zealous young counsel, who has, with much ability, presented his client's cause in this court in his effort to secure, what he conceived to be, justice in that client's behalf, committed an error, which we know was absolutely unintentional on his part when he secured and offered the jurors' statements to the court. Without reflecting, or with the slightest intention to reflect, upon the counsel or any of the jurors, we must...