Dibley v. Peters, 27340.

• Decision Date: 10 August 1939
• Docket Number: 27340.
• Citation: 93 P.2d 720,200 Wash. 100
• Parties: DIBLEY v. PETERS et ux. MATTHEWS v. SAME. GREEN v. SAME.
• Court: Washington Supreme Court

93 P.2d 720

200 Wash. 100

DIBLEY v. PETERS et ux.

MATTHEWS v. SAME.

GREEN v. SAME.

No. 27340.

Supreme Court of Washington

August 10, 1939

Department 1.

Separate actions by Alice M. Dibley, by Worthie Mathews, and by Herbert D. Green, respectively, against William F. Peters and wife, for damages caused in automobile collision consolidated for the purpose of trial. From an order granting a new trial, after verdict for defendants, defendants appeal.

Affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge. County; Fred H. Witt, Judge.

Edge &amp Keith, H. E. Sarette and Norman dePender, all of Spokane, for appellants.

H. Earl Davis and C. A. Orndorff, both of Spokane, for respondents.

JEFFERS Justice.

This appeal is from an order granting a new trial in each of three actions, consolidated for the purpose of trial, after a verdict in favor of the defendants in each action.

The suits were instituted by plaintiffs, Alice M. Dibley, Worthie Matthews and Herbert D. Green, against defendants William F Peters and Ethel Peters, his wife, to recover damages for injuries claimed to have been sustained by plaintiffs, as the result of an automobile accident. Plaintiffs in each case claimed the accident was caused by the negligence of defendant Ethel Peters in the operation of an automobile driven by her.

Defendants filed an answer to the complaint in each case, wherein they denied any negligence on their part, and alleged affirmatively that plaintiffs and the driver of the car in which they were riding were guilty of contributory negligence, and further alleged that plaintiffs and one Garland D. Connor, the driver of the car in which plaintiffs were riding, at the time of the accident were engaged in a common enterprise or joint venture.

The jury returned a verdict in favor of defendants in each case.

Plaintiffs interposed a motion for new trial on all the statutory grounds. The motion was granted, on the sole ground of the misconduct of juror W. E. Cassidy.

Plaintiffs filed six affidavits in support of their motion, and defendants filed ten controverting affidavits. We shall attempt to summarize these affidavits as briefly as possible, first taking up the affidavits filed by plaintiffs.

D. R. Cork states in his affidavit that he had known W. E. Cassidy for fifteen years, and that he (Cassidy) had been following carnivals, and had been operating carnival games of chance, giving blankets and other merchandise as prizes; that on January 19, 1938, the same day the jury in the instant action was released, after having returned its verdict, affiant met Cassidy on the street in Spokane, and had a conversation with him, in which Cassidy stated that he had just been released from the Peters case, that he had done good work for the Peters and saved them a bunch of money for his work on the jury, and that he was going to get in touch with Peters, asking affiant if he knew where Peters lived; that a couple of days later affiant again met Cassidy on the street, and had another conversation with him, in which he stated that while he was sitting as a juror in the Peters case, he had been informed that both cars involved in the accident had liability and property damage insurance, that the company covering the car in which plaintiffs were riding had made settlement for injuries to some of the occupants of the Peters car, and that that was proof the Peters were not to blame.

The affidavit of Andrew James Duncan, who was a juror in this case, states that during the time the case was being tried, and Before it had been submitted to the jury, Cassidy, on several occasions, tried to discuss the facts of the case with affiant, and that on one occasion, Cassidy stated to affiant that he had talked to the prosecutor in regard to the case, and had been informed by the prosecutor that there was $5,000 insurance on each car, and that the issue in the action was over insurance; that affiant informed Cassidy that under the instructions of the court, they were not to discuss the case until it had been submitted to them by the court, but that Cassidy still attempted to discuss the case with affiant; that Before the case was submitted to the jury, affiant observed Cassidy talking to other jurors, and affiant knew, from what he heard, that they were discussing the case and the facts with reference to insurance, Cassidy claiming to know there was insurance involved in the case; that when the jury retired to the jury room to consider their verdict, Cassidy immediately announced that the only way attorney Davis, for plaintiffs, would get his money was through the insurance company, providing he won this case, but that he (Cassidy) had sympathy for the Peters, and would not vote against them; that there was some discussion as to whether or not Mrs. Peters was intoxicated, but Cassidy stated that so far as he was concerned, that did not enter into it, and refused to discuss the facts of the case with affiant or the other jurors, but from the start took the attitude that, regardless of the facts, he was for the Peters; that when the question of negligence on the part of Mrs. Peters was discussed, Cassidy took the position and stated that it appeared that plaintiff Green was making enough money to take care of himself, and that Peters should not be stuck for damages, when plaintiffs did not need the money.

The affidavit of H. Earl Davis, one of the attorneys for plaintiffs, relates that immediately after the return of the verdict in the instant case, he had a talk with juror Cassidy, in which Cassidy stated that he controlled the jury, and was responsible for the verdict in favor of Peters, and further stated that after he had looked the case over, he felt 'that there was only one cow to milk, and that the only cow that had any milk was the Peters;' that Cassidy stated to affiant, in his office, on or about February 15, 1938, that he (Cassidy) had known Lester Edge for a long time, that he had known there was insurance on both cars, and felt the lawsuit was between the insurance companies, that he had learned from authoritative sources, between the time the jury was selected and the time the case was submitted to the jury, that the company carrying the insurance on the car in which plaintiffs were riding had made a settlement with Betty Hurst, one of the occupants of the Peters car, and that to him that was an admission of liability on the part of Connor; that Cassidy further stated to affiant that he knew and had found out that there was $3,000 insurance on the Peters car, and that there had been an offer made to plaintiffs to settle for $3,000; that affiant tried to find out from Cassidy the source of his information, but Cassidy only made answer that 'jurors are not so dumb, they have a way of finding out things;' that at the conclusion of the case, the jury was polled, and jurors Andrew John Duncan and Effie Pringle dissented from the verdict.

The affidavit of Paul K. Cooney, an employee in the office of H. Earl Davis, states that on February 15, 1938, he called juror Cassidy on the telephone, and that subsequently Cassidy came into the office, and in a conversation with affiant, Cassidy stated, in substance, that after the jury was selected, and Before the case was submitted to them, he (Cassidy) learned from sources which convinced him of the truth of the statements, that there was insurance on both cars involved in the accident, and that Betty Hurst, one of the witnesses for defendants and one of the occupants of defendants' car, had been paid some figure, which he learned to be around $700; that Cassidy would not reveal the source of his information.

The affidavit of Herbert D. Green, one of the plaintiffs herein, states that he was around the halls and in the men's rest room during the various recesses, and on more than one occasion observed juror Cassidy talking to defendants Peters and wife, and also to Betty Hurst, one of the witnesses for defendants; that following the afternoon recess on January 14th, affiant observed Cassidy talking to defendant Peters for some time; that at one time during the trial, in the men's rest room, affiant heard Cassidy and one other juror talking, and that one of them said this was an insurance case.

Grace J. Green, wife of plaintiff Herbert D. Green, in her affidavit states that she was present in court during the time the instant case was being tried; that on several occasions following recess, when the jury was being returned to the jury box, affiant observed juror Cassidy wink at defendant Peters in such a manner as to be noticeable to affiant sitting in the court room; that affiant noticed this to occur following the noon recess on Monday, January 17th.

Defendants' affidavits show substantially as follows:

William F. Peters, one of the defendants, in his affidavit states that at no time during the trial did he contract any member of the jury; that at no time were any winks or glances exchanged between affiant and any of the jurors; that affiant has no personal acquaintance with any of the jurors trying the case.

Betty Hurst states in her affidavit that at no time during the trial did she have a conversation with juror Cassidy, nor did she observe Mr. and Mrs. Peters, or either of them, in conversation with Cassidy.

W. E Cassidy states in his affidavit that he has read the affidavits presented by plaintiffs in reference to him; that he denies that he winked at defendant Peters, or that he made any overture or friendly gesture towards anyone connected with the case; that he has known D. R. Cork for many years, that he met Mr. Cork on the street about January 19th, and talked to him, and that during the conversation some inquiry was made as to the case in which affiant...