City of Miami v. Bopp

• Decision Date: 06 December 1934
• Citation: 158 So. 89,117 Fla. 532
• Parties: CITY OF MIAMI v. BOPP.
• Court: Florida Supreme Court

158 So. 89

117 Fla. 532

CITY OF MIAMI v. BOPP.

Florida Supreme Court, Division B.

December 6, 1934

Rehearing Denied Dec. 27, 1934.

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Action by Frances Bopp against the City of Miami, a municipal corporation, etc. To review an order granting new trial defendant brings error.

Affirmed.

See also, 114 Fla. 262, 154 So. 199.

COUNSEL J. W. Watson, Jr., Mitchell D. Price & Charles W. Zaring, and Jack R. Kirchik, all of Miami, for plaintiff in error.

Ruff &amp Ready and Hendricks & Hendricks, all of Miami, for defendant in error.

OPINION

BUFORD Justice.

We consider here writs of error from two judgments. Both cases are identical except the names of different parties. They were tried together in the court below, the same evidence applying to both cases.

The verdict was in favor of the defendant.

Motion for new trial was made and granted.

Writ of error is to review the order granting new trial.

One of the grounds for the new trial was:

'Because the verdict returned by the jury is not the verdict of each juror and of all the jury trying the case.'

There are thirty-two other grounds stated in the motion. In support of the quoted ground of motion, certain affidavits were presented to the court. One of these affidavits is as follows:

'Before me, the undersigned authority, this day personally appeared Charles Brown, who being by me first duly sworn states on oath that he was a member of the jury which recently tried the cases of Frances Bopp v. City of Miami and Carolyn Wolfe v. City of Miami; that from the evidence introduced upon said trial he was and still is of the opinion that verdicts should have been rendered against the City of Miami, and that the verdicts in favor of the City of Miami which were rendered are not in accordance with the views of this affiant as formed by him from the evidence introduced; that during the progress of these cases affiant saw a statement in the Miami Herald relative to the cases and he mentioned this fact in the Jury Room, and that thereafter when the Jury were deliberating on the verdicts to be returned, the foreman of said Jury, Harry B. Peacock, threatened affiant that if he, affiant, did not agree to render verdicts in favor of the City of Miami, he, the foreman, would report to Judge Thompson who was presiding during the trial of said cause, that affiant had read the newspaper account, and the said foreman further threatened that this would get affiant in trouble. Thereafter, affiant consented to the returning of the verdicts in favor of the City, but affiant refused to sign either of said verdicts.'

This affidavit is corroborated by the affidavit of another juror in the following language:

'Affiant further makes oath that during the progress of said cases, one of the other members of the Jury, Charles Brown, while in the Jury Room referred to an account of the cases which he had read in a newspaper, and that thereafter the foreman of said Jury, Harry B. Peacock, threatened the said Charles Brown that if he, the said Brown, did not agree to render verdicts in favor of the City of Miami, he, the foreman, would report to Judge Thompson that the said Charles Brown had read the newspaper account, and he said that if he did this it would get the said Charles Brown into trouble. Thereafter, the said Charles Brown withdrew his objections to rendering verdicts in favor of the City of Miami.'

These statements made by the jurors were contradicted in other affidavits presented, one signed by Harry B. Peacock, who appears to have been foreman of the jury, and another by Durant D. Weaver, a member of the jury.

The order of the court on the motion is as follows:

'The motion for a new trial heretofore interposed by the above named plaintiff, Caroline Wolfe, and which motion was filed on the 23rd day of June, 1933, coming on for hearing, and after argument of counsel and consideration of affidavits and briefs filed in relation to said motion and the Court being duly advised in the premises;

'It is thereupon ordered that said motion for a new trial be and the same is hereby granted, to which ruling of the court the defendant, City of Miami, duly excepts.

'Done and ordered in Chambers at Miami, Florida, this 25th day of October, A. D. 1933.'

If the thing transpired which the juror Charles Brown and the juror Lewis H. Dodge said in their respective affidavits did transpire, then the verdict of the jury was influenced by the consideration of matters outside the evidence and was brought about by unlawful and illegal means.

It is true, as a general rule, on the ground of public policy, that the affidavit, deposition, or statement of a juror will not be received to impeach his own verdict; but this court has heretofore recognized exceptions to that rule, and especially that exception which is generally recognized by the courts of this country.

In Linsley v. State, 88 Fla. 135, 101 So. 273, 275, we said:

'It is upon grounds of public policy that the rule is observed that the affidavit, deposition, or statement of a juror will not be received to impeach his own verdict; but this rule relates to matters resting in the personal consciousness of the juror, as said by Mr. Justice Brewer in Perry v. Bailey, 12 Kan. 539. When a juror is heard to impeach his own verdict because of some matter resting in his own consciousness, the power is given to him to nullify the expressed conclusions under oath of himself and eleven others. 'The general rule is that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room which does not essentially inhere in the verdict itself.' See Perry v. Bailey, supra.

'The rule is general, with but few exceptions, if any, that the testimony of jurors will not be received to impeach their verdict. See Bartlett v. Patton, 33 W.Va. 71, 10 S.E. 21, 5 L. R. A. 523, and note; 27 R. C. L. 896.

'The rule announced in the Kansas case seems to us to be a salutary one and more consistent with reason and sound policy. That rule, as announced by Mr. Justice Brewer, is that all those matters lying outside the personal consciousness of the individual juror, those things which are matters of sight...