Board of Trustees Eloy Elementary School Dist. v. McEwen

• Decision Date: 04 August 1967
• Docket Number: No. 2,CA-CIV,2
• Citation: 430 P.2d 727,6 Ariz.App. 148
• Parties: BOARD OF TRUSTEES ELOY ELEMENTARY SCHOOL DISTRICT, Horace Chesley, Joe Bundy and Curtis Coundry, Appellants, v. Anthony McEWEN, by his Guardian ad Litem, Obie McEwen, Appellee. 210.
• Court: Arizona Court of Appeals

Page 727

430 P.2d 727

6 Ariz.App. 148

BOARD OF TRUSTEES ELOY ELEMENTARY SCHOOL DISTRICT, Horace Chesley, Joe Bundy and Curtis Coundry, Appellants, v. Anthony McEWEN, by his Guardian ad Litem, Obie McEwen, Appellee.

No. 2 CA-CIV 210.

Court of Appeals of Arizona.

Aug. 4, 1967.

Rehearing Denied Oct. 27, 1967.

Review Denied Jan. 9, 1968.

Snell & Wilmer, by John J. Bouma, Phoenix, for appellants.

H. B. Daniels, Phoenix, for appellee.

HATHAWAY, Chief Judge.

The appellants, defendants below, have taken this appeal from an order of the superior court, Pinal County, granting a new trial to the appellee, plaintiff below. The plaintiff sued for injuries allegedly sustained as a result of an alleged assault by defendants Bundy and Condry, teachers at Eloy Elementary School. The complaint alleged that defendant Chesley and defendant Board of Trustees negligently permitted and allowed the defendants-teachers to assault the plaintiff. The case was tried to a jury which returned verdicts in favor of each of the defendants and judgment was entered thereon. Plaintiff then filed a motion for a new trial, accompanied by affidavits, alleging irregularities in the proceedings of the jury. These affidavits consisted of a sworn statement of Walter McCarthy, a juror, plaintiff's affidavit, and an affidavit of plaintiff's attorney.

On voir dire, the prospective jurors were asked by the court whether anyone was acquainted with the plaintiff or his father. One prospective juror admitted being a close friend of the plaintiffs and was excused. The court then asked 'Anyone else know the plaintiffs in this particular case?' This question elicited no response from the prospecitve jurors. Mr. McCarthy's deposition, ¹ submitted with plaintiff's motion for a new trial, reveals the following:

'Q Now, did you know this minor defendant, Anthony McEwen?

A I did previous.

Q You did know him previously?

A Uh huh.

Q You knew him personally?

A Personally--no, but I knew of him.

Q Would you know him if you saw him?

A Oh, yes.

Q You knew him to recognize him?

A Yes.

Q How long have you known him, Mr. McCarthy?

A Ever since I had been there the last time.

Q Well, that would be how long?

A Ten years.

Q When was the first time you had any contact with him?

A Oh, about two years previous.

Q Two years previous to the trial?

A Uh huh.

Q What was that contact?

A I was in the office when he tried to sell Bud that tire.

Q What tire was that?

A He stoled a General tire and was wheeling it around the block and my sister come in about that time and I was sitting there talking to her and--

Q That was in Bud Harpain's filling station?

A Yes, sir.

Q What was your sister doing there?

A She is the general manager of the joint. The place belongs to four of us.

Q The service station belongs to four of you?

A Yes.

Q Actually, he stole the tire from the service station?

A Yes.

Q In other words, he stole the tire from you and the other three?

A Yes. Naturally, he was as guilty to me as anybody else.

Q Did the boy ever steal anything else from the service station?

A Yes, he stole two or three pockets of wrenches around there and the kids--Grace had them arrested.

Q How long before the trial did this occur, the stealing of the wrenches?

A About 18 months, I guess.

Q That was after the tire was stolen?

A Uh huh.

Q What was your general opinion of this boy, Mr. McCarthy?

A Just generally no good.

Q Is that the way you felt about him?

A Just exactly the way I felt about him.

Q After the jury started deliberations on the case, was there any discussion of this in the jury room?

A Yes, there was.'

Mr. McCarthy further stated that in the jury room he made two attempts to tell the other jurors about these purported thefts but, upon the jury foreman's admonition, he 'shut up.' In response to other questions, the juror stated he was of the opinion that the plaintiff 'was absolutely no good' and that the juror would not at any time believe him under oath.

The substance of the plaintiff's affidavit was that he was not acquainted with Mr. McCarthy, that he had never been arrested for stealing tires or wrenches and had no knowledge of the facts testified to by the juror in his deposition. Plaintiff's counsel gave an affidavit that he had no knowledge that the juror knew the plaintiff, that among the questions propounded to the prospective jurors were questions as to whether they knew any of the parties to the litigation and whether anyone had reason why he could not give a fair and impartial verdict in the case. He further stated that, subsequent to the trial, he was informed ² that the juror McCarthy was guilty of misconduct and irregularities in the jury proceedings.

One of the grounds stated in plaintiff's motion for new trial was 'there were irregularities in the proceedings of the Jury depriving Plaintiff of a fair trial.' The trial court's order granting a new trial stated as follows:

'* * * the Court feels that although the verdict rendered by the Jury was justified by the evidence, the Court must set aside said verdict based upon the conduct of the juror who failed to acknowledge the fact that he knew the Plaintiff and that he had discussed the matter with other persons prior to time of trial and that this failure to acknowledge deprived the Plaintiff the opportunity to voir dire said juror and new trial should be granted.'

The defendants contend that the trial court erred in considering the juror's deposition. The generally recognized rule that the verdict of the jury cannot be impeached by the affidavits of jurors is a court-created doctrine first announced by Judge Mansfield in Vaise v. Delaval, 1 Term R. 11 (K.B. 1785). There the affidavit was to the effect that the jury's verdict was achieved by resort to chance--the jurors being divided in their opinion, 'tossed up' and those favoring the plaintiff won the toss. In rejecting the affidavit, Lord Mansfield stated:

'The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor; but in every such case the Court must derive their knowledge from some other source, such as some person having seen the transaction through a window, or by some such other means.' 8 Wigmore § 2352, p. 696 (McNaughton rev. 1961)

Professor Wigmore points out that the rule that a juror may not impeach his verdict appears to be founded on three independent and general principles:

1. Privileged communications

2. Parol evidence rule

3. Self-stultifying testimony

8 Wigmore, Evidence § 2345 (McNaughton rev. 1961).

The principle of privileged communications between jurors clearly would not apply in this case. The principle prohibits the disclosure of communications with a fellow juror without the latter's consent. The subject affidavit does not disclose such a communication.

The policy of the parol evidence rule prohibits the disclosure of a juror's motives, beliefs, and misunderstandings preceding and leading up to the final act of uttering the verdict. 8 Wigmore, Evidence § 2345 (McNaughton rev. 1961). The principle is that where the existence and tenor of a jural act are in issue, the outward utterance as finally and formally made, and not prior and private intention, is taken as exclusively constituting the act. 8 Wigmore, Evidence § 2348 (McNaughton rev. 1961). The verdict is the sole embodiment of the juror's act:

'The policy which requires this is the same which forbids a consideration of the negtiations of parties to a contract leading up to the final terms as deliberately embodied in their deed, namely, the loss of all certainty in the verdict, the impracticability of seeking for definiteness in the preliminary views, the risk of misrepresentation after disclosure of the verdict, and the impossibility of expecting any end to trials If the grounds for the verdict were allowed to effect its overthrow.' (Emphasis supplied)

8 Wigmore, Evidence § 2349 (McNaughton rev. 1961).

The parol evidence principle would be inapplicable here since the subject matter of McCarthy's sworn statement does not pertain to the Grounds for the verdict, but rather the juror's qualifications.

As for the doctrine of self-stultifying testimony (Lord Mansfield's rule) this principle forbids the use of a juror's testimony to prove his own misbehavior. It is based on the principle 'nemo turpitudinem suam allegans audietur' (a witness shall not be heard to allege his own turpitude). 8 Wigmore, Evidence § 2345 (McNaughton rev. 1961). Professor Wigmore criticizes this doctrine:

'Finally, it must be pointed out that while Lord Mansfield's own statement of the rule obliged the proof of the misconduct to defend solely on the testimony of 'some person having seen the transaction through a window or by some such other means,' his successors have committed an absurdity which he would hardly have condoned. A bailiff or other court officer, who may have been present at the jury's deliberations, may by universal concession (§ 2354 infra) prove their misconduct though it is a gross breach of duty (except in one or two jurisdictions) for him to attend or overhear. Thus, not only does the rule tempt the parties to seduce the bailiffs to tricky expedients and surreptitious eavesdroppings, but the law, while with one hand it sanctimoniously puts away the juryman who reports his own misconduct done during the privacy of retirement, yet with the other hand it inconsistently invites to the same witness stand the plaintiff whose shameless disregard of his duty in intruding upon that privacy forms his only qualification as a witness and the sole tenor of his testimony. If there cannot be any principle in this rule, it should at least possess logic.' 8 Wigmore, Evidence § 2353, p. 698 (McNaughton rev. 1961).

The doctrine, if applicable at all, is predicated upon misconduct in the jury room itself and therefore would be inapplicable here. Consequently, it would seem, under Wigmore's analysis of the justification...