Casey v. Williams, 33087
| Citation | 47 Wn.2d 255,287 P.2d 343 |
| Decision Date | 01 September 1955 |
| Docket Number | No. 33087,33087 |
| Court | United States State Supreme Court of Washington |
| Parties | George CASEY and Virginia Casey, husband and wife, Respondents, v. Floyd E. WILLIAMS and Dorothy E. Williams, husband and wife, Appellants. |
Randall, Danskin & Lundin, Paul J. Allison, Spokane, for appellants.
H. Earl Davis, Wm. P. Wimberley, Spokane, for respondents.
This is 'The Case of the Somnolent Juror.'
The jury returned a verdict for defendant, both on plaintiff's complaint and on defendant's cross-complaint. Defendant appeals from an order granting plaintiff's motion for a new trial.
Pursuant to Superior Court Rule 16, 34A Wash.2d 117, as amended, effective July 1, 1954, the order granting plaintiff's motion for a new trial states that
'* * * one of the jurors was asleep on several occasions during the course of the trial and * * * that counsel for the plaintiff interrupted the trial and called the Court's attention to the conduct of said juror, and * * * that such conduct coupled with the obvious fact that the jury did not properly deliberate on the question of contributory negligence, and that substantial justice was not done and a new trial must be granted * * *'
The facts are not in dispute. On three occasions during the trial, it was apparent to counsel and the court that one of the jurors was asleep.
On the first occasion, counsel for plaintiff approached the bench and, out of hearing of the jury, called this fact to the court's attention. He asked for no relief. When the trial resumed, the trial judge asked the bailiff to check the heat in the radiators, stating, 'Maybe we can all stay awake a little better if we get the heat cut off.' On the second occasion, plaintiff's counsel asked the juror if he could hear the testimony. He received an affirmative reply. On the third occasion, the bailiff handed the juror a glass of water. The court asked, 'Are you awake now, Mr. B?' The juror replied, 'Yes, sir, I am awake now.' The trial proceeded without objection from counsel for plaintiff.
We give no weight to the admission of defendant's counsel that the juror fell asleep while he (defendant's counsel) was examining witnesses.
This court said in Johnson v. Howard, 1954, 45 Wash.2d 433, 436, 275 P.2d 736, 739:
The instant case falls under the limitation of the rule announced above. The question is not whether the trial court abused its discretion at the time the alleged error occurred, for plaintiff's counsel, at that time, asked for no relief and the court exercised no discretion. The question is: whether, as a matter of law under the facts of this case, plaintiff waived his right to claim error for alleged misconduct of the jury. We believe that he did. The rule announced in Sun Life Assurance Co. v. Cushman, 1945, 22 Wash.2d 930, 945, 158 P.2d 101, 108, is determinative.
'It may be admitted that, in a case such as now before us, no admonition that could be given by the trial court could correct the situation, if actual misconduct had occurred, but respondents had a remedy, and it was their duty, if they expected to claim error based upon the alleged misconduct of appellant and the jury, not only to call the matter to the attention of the trial court, but, also, to claim a mistrial and ask that the jury be discharged * * * and not to wait, as did respondents in this case, until an adverse verdict had been rendered, and then, for the first time, claim error based upon such alleged misconduct.' (Italics ours.)
Such conduct of a juror (if prejudicial) is prejudicial when...
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State v. Hughes
...of Juror From Sleepiness or Other Cause as Ground for Reversal or New Trial, 88 A.L.R.2d 1275, 1276 (1963).69 Casey v. Williams, 47 Wash.2d 255, 257, 287 P.2d 343 (1955).70 CrR 4.7(h)(3).71 RAP ...
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State v. Beck
...of the juror would have to be established by something more reliable than hearsay affidavits. Casey v. Williams, 1955, 47 Wash.2d 2d 255, 287 P.2d 343; State v. Maxfield, 1955, 46 Wash.2d 822, 285 P.2d 887; State v. Patterson, supra; State v. Dalton, 1930, 158 Wash. 144, 290 P. 989; State v......
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Lappe v. Blocker
...Trucking Co., 165 So.2d 819 (Fla.App.), cert. disch, 174 So.2d 398 (Fla.); Mahoney v. Smith, 78 R.I. 56, 78 A.2d 798; Casey v. Williams, 47 Wash.2d 255, 287 P.2d 343; Johnson v. Howard, 45 Wash.2d 433, 275 P.2d 736; Mulka v. Keyes, 41 Wish.2d 427, 249 P.2d 972. Cases on the subject are gath......
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Hernandez v. Precision Drywall, Inc.
... ... risk of permitting the case to go to the jury." ... Casey v. Williams , 47 Wn.2d 255, 257, 287 P.2d 343 ... (1955) ... By ... ...
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Chapter §59.6 Analysis
...of grounds for new trial. See, e.g., State v. McKenzie, 56 Wn.2d 897, 901, 355P.2d834 (1960) (surprise testimony); Casey v. Williams, 47 Wn.2d 255, 257, 287P.2d343 (1955) (sleepingjuror);Fleenor v. Erickson, 35 Wn.2d 891,901,215P.2d885 (1950) (juror misconduct); Sun Life Assurance Co. of Ca......
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Chapter § 11.7 Particular Applications of the General Rule and Its Exceptions
...claim of error will be waived. See, e.g., State v. Valenzuela, 75 Wn.2d 876, 881, 454 P.2d 199 (1969) (pre-RAP case); Casey v. Williams, 47 Wn.2d 255, 257, 287 P.2d 343 (1955) (pre-RAP Jury misconduct occurring during the jury's deliberations should be raised in a motion for new trial. Coun......
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Table of Cases
...aff'd, 130 Wn.2d 335, 922 P.2d 1335 (1996): 17.7(7) Case v. Dundom, 115 Wn. App. 199, 58 P.3d 919 (2002): 12.7(19) Casey v. Williams, 47 Wn.2d 255, 287 P.2d 343 (1955): 11.7(10) Cashaw, In re, 123 Wn.2d 138, 866 P.2d 8 (1994): 24.4(3) Cashmere State Bank v. Richardson, 105 Wash. 105, 177 P.......
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Chapter §46.7 Significant Authorities
...discovered or the claim of error will be waived. See, e.g., State v. Valenzuela, 75 Wn.2d 876, 881, 454P.2d199 (1969); Casey v. Williams, 47 Wn.2d 255, 257, 287P.2d343 The Court of Appeals decision in State v. Jackson, 75 Wn.App. 537, 542-44, 879 P.2d 307 (1994), review denied, 126 Wn.2d 10......