Caldwell v. Yeatman

• Decision Date: 03 September 1940
• Parties: CALDWELL v. YEATMAN et al. (two cases).
• Court: New Hampshire Supreme Court

15 A.2d 252

CALDWELL

v. YEATMAN et al. (two cases).

Supreme Court of New Hampshire. Cheshire.

Sept. 3, 1940.

[Copyrighted material omitted.]

Transferred from Superior Court, Cheshire County; Connor, Judge.

Actions on the case for negligence by Thomas A. Caldwell against Georgie W. Yeatman and others for personal injuries, and by Bernard C. Caldwell against Georgie W. Yeatman and others for property damage. Cases transferred on defendants' exceptions after defendants' motions to have jury recalled and interrogated and to have verdicts for plaintiffs set aside were denied.

Exceptions overruled.

Two actions on the case, for negligence. The first is to recover for personal injuries, the second for property damage. A trial by jury, in which the actions were consolidated, resulted in verdicts for both plaintiffs. The jury had a view.

The plaintiff Thomas is the son of the plaintiff Bernard. Thomas, while driving his father's horses and vehicle along a public highway, was run into from behind by an automobile owned by the defendant Georgie and operated by her servant, the defendant Alfred, who was then acting within the scope of his employment. On the day of the accident, December 14, 1938, Thomas had been yarding logs with his father's team on a farm about two miles away from their home. There was evidence that on that day Thomas left the skidway with the horses to drive home at sometime between 4:05 and 4:10 P. M., and that the accident occurred, according to the uncontradicted testimony of the plaintiff's engineer, at a point 1.85 miles from the skidway. Important issues in the cases were (1) the distance a pair of horses and the vehicle to which they were attached could be seen at or near the place of the accident at night by the driver of an automobile with standard headlights turned on full on low beam, as the defendant Alfred said he was driving when the collision occurred, and (2) whether or not at that time it was daylight or dark. It is agreed that sunset occurred at the time and place of the accident at 4:16 P. M. and the plaintiffs admit that there was no light upon their vehicle when it was run into.

In the transferred case it appears that: "The case [s] was [were] submitted to the jury about 7 P. M. on March 25, 1940. The sheriff was notified by the court at 11:35 P. M. that at 11:45 P. M, the jurors were to cease their deliberations and at 12:10 A. M. the court was notified by the sheriff that the jurors had retired for the night and were comfortable. The jurors were taken to breakfast between 7:00 and 7:30 A. M. and resumed their deliberations about 8:15 A. M. and returned the verdicts at about 9 A. M."

On March 29, 1940, the defendants filed identical motions to have the jury recalled and interrogated and to have the verdicts set aside. In support of these motions counsel for the defendants filed their own affidavits in which they recounted in summarized form the results of conversations had by them with the members of the jury after the latter had been discharged and had separated. These motions came on for hearing by the court on April 10, 1940, at which time defendant's counsel took the stand and, over the objection and subject to the exception of counsel for the plaintiff, testified as to what the jurors had said with respect to their conduct during the trial. From this testimony and the affidavits it appears that one juror, who had occasion during the trial to travel on personal business over the highway where the accident occurred, measured with the speedometer of his car the distance from the skidway to the scene of the accident and reported to two of his fellow jurors his finding that the measurement made by him coincided with that of the plaintiffs' engineer; that this same juror also observed the visibility afforded by the headlights of his car at the scene of the accident and reported his observation to at least one of his fellows on the panel; that another juror reported to the jury that during the trial he had met a friend on the street, not a witness, who told the juror that he had passed the Caldwell vehicle shortly before the accident and that it was then daylight and the vehicle clearly visible and that this statement was discussed by the jury during its deliberations; and finally that the rooms provided in the courthouse for the accommodation of the jury over night were cold and dirty, and that uncomfortable beds and insufficient blankets were provided, so that due to these discomforts and the skylarking and horseplay of some of the jurors, all were prevented from obtaining a restful night's sleep.

On April 18, 1940, the defendant's motions were denied and they excepted. These exceptions were transferred by Connor, J., in advance of the transfer of the defendants' other exceptions and they are the only ones now before us.

Such additional facts as are material are stated in the opinion.

Walter H. Gentsch, of East Jaffrey, and Robert W. Upton, of Concord, for plaintiffs.

Faulkner & Bell and Gardner C. Turner, all of Keene, for defendants.

WOODBURY, Justice.

As early as 1827, Chief Justice Richardson speaking for this court announced it was well settled as a rule of policy in this state that "jurors are not to be received to testify to the motives and inducements on which they may have joined in a verdict. * * * Nor can the affidavits of all the jurors be received to correct a mistake in the verdict." Tyler v. Stevens, 4 N.H. 116, 117, 17 Am.Dec. 404. Six years later in the case of State v. Hascall, 6 N. H. 352, 361, an exception (see Hearn v. Boston, etc., Railroad, 67 N.H. 320, 323, 29 A. 970) to this general rule was formulated which permitted the use of affidavits of jurors to sustain a verdict after it had been attacked by competent evidence of misconduct on the part of one or more members of the jury. So, in 1843 in the case of Tenney v. Evans, 13 N.H. 462, 464, 40 Am.Dec. 166, this court, referring to the two earlier New Hampshire cases cited above, said that the affidavits of jurors "could not be received to show that they misapprehended the instructions of the court, nor, where there is evidence of improper conduct by the jury or the prosecutor relating to the trial, to prove in general terms that their verdict was founded upon nothing but the law and the evidence." The court then added, citing cases from other jurisdictions as authority, "Nor to impeach the verdict, or prove a mistake, or any improper conduct by themselves." The opinion then proceeds in the following language: "But where evidence has been introduced aliunde to impeach the verdict, by showing improper conduct of the jury, or attempts upon them by a party, the affidavits of jurors have been received in exculpation of themselves, and in support of the verdict. And for this there are substantial reasons. The motives and characters of jurors, who are bound by their oaths and consciences to a strict impartiality, and who perform so important a part in our jurisprudence, should not be assailed without giving them an opportunity for defence. 'To exclude the testimony of jurors,' as was said by Parker, C. J. in the State v. Hascall, 6 N. H. [352] 361, 'in all questions affecting their verdict, would neither be just to the parties nor to the jury.'" Later, in the case of Leighton v. Sargent, 31 N.H. 119, 137, 64 Am.Dec. 323, the rule was succinctly stated by the court in the following language: "It is now fully settled, in this State, that the affidavit of a juror is admissible in exculpation of himself, and to sustain a verdict, but when it relates to what took place after the jury had retired, is wholly incompetent to impeach it." In addition to the cases already noted, this rule has been applied many times and the policy upon which it rests frequently re-examined since 1827, but neither it nor its basic policy appears ever to have been questioned. State v. Howard, 17 N.H. 171, 186; State v. Ayer, 23 N.H. 301, 320; Folsom v. Brawn, 25 N.H. 114, 123; Goodwin v. Milton, 25 N.H. 458, 472; Walker v. Kennison, 34 N.H. 257, 260; Petition of Groton, 43 N.H. 91, 94; Smith v. Smith, 50 N.H. 212, 219; Knight v. Epsom, 62 N.H. 356; Clark v. Manchester, 64 N.H. 471, 13 A. 867; Palmer v. State, 65 N.H. 221, 19 A. 1003; Mason v. Knox, 66 N.H. 545, 27 A. 305; Maxfield v. Pittsfield, 67 N.H. 104, 36 A. 609; Hearn v. Boston, etc., Railroad, 67 N.H. 320, 29 A. 970; Goodwin v Blanchard, 73 N.H. 550, 64 A. 22; Winslow v. Smith, 74 N.H. 65, 70, 65 A. 108; Boston & Maine Railroad v. State, 76 N.H. 86, 91, 79 A. 701; Blodgett v. Park, 76 N. H. 435, 84 A. 42, Ann.Cas.1913B, 853. From these authorities, and since it is obvious that "if the testimony of a juror is not admissible to impeach the verdict, evidence of his declarations cannot be received for that purpose" (Palmer v. State, 65 N.H. 221, 222, 19 A. 1003; see also State v. Ayer, 23 N.H. 301), it follows that the defendants' motions, in so far as they request the setting aside of the verdicts for improper conduct of the jurors, were quite properly denied for lack of any competent supporting evidence.

A different question is presented by the motions in so far as they request that the jury be recalled and interrogated concerning their conduct while considering the case. "If the affidavits offered by the plaintiff [the affidavits under consideration in the case from which this quotation is taken were those of a juror and of one to whom the juror had confided] * * * to sustain his motion were not competent testimony, as it seems they were not * * * it appears * * * that the law furnished other...