Diehl v. Wilmot Castle Co., 70-247
| Decision Date | 23 June 1971 |
| Docket Number | No. 70-247,70-247 |
| Citation | 26 Ohio St.2d 249,271 N.E.2d 261 |
| Parties | , 55 O.O.2d 484 DIEHL, a Minor, et al., Appellants, v. WILMOT CASTLE CO., Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Testimony of the husband of a juror that he and his wife, during the course of the trial in which she was serving as a juror, went to the scene of the accident and reenacted the accident which was the subject of the lawsuit, is evidence aliunde of juror misconduct which may be used to impeach the jury's verdict.
2. In such a case, the activities of the husband and wife, in driving separate cars on a public street and in the driveway to a public hospital, were activities open to general observation by all those persons who may be, and conceivably were, in the area at the time of the experiment, and testimony of the husband and the wife regarding this experiment is not within the ambit of the statutorily protected communication accorded under the provisions of R.C. 2317.02.
The privilege accorded under the provisions of R.C. 2317.02 to a husband and wife not to testify 'concerning any communication made by one to the other, or an act done by either in the presence of the other' is personal to husband and wife and may not be invoked by a third party.
Damages for alleged injuries sustained in an automobile collision are sought in these cases, consloidated for trial, by Rosemarie L. Diehl and her minor son, Gregory J. Diehi, from Wilmot Castle Company. The jury returned a verdict in favor of defendant in the Court of Common Pleas.
In the course of the trial, juror Anne Eichinger, later elected forelady, met her husband, John, at the scene of the accident and in separate automobiles they experimentally reenacted the accident several times. The accident locale was at an entrance to Mansfield General Hospital on Glessner Avenue in the city of Mansfield. The forelady disclosed these experiments to the other jurors and joined in the verdict against plaintiffs, on which judgment was entered.
On motion for a new trial on the ground of juror misconduct, plaintiff deposed both Mrs. Eichinger and her husband and, after hearing, the trial court overruled the motion without opinion.
Plaintiff's appeal to the Court of Appeals resulted in an affirmance of the trial court's order on the ground that the testimony of Mr. and Mrs. Eichinger was privileged and therefore there was no competent evidence of misconduct before the trial court on the motion for new trial. (21 Ohio App.2d 191, 256 N.E.2d 220.)
The cause is before this court pursuant to the allowance of a motion to certify the record.
Lutz & Inscore, and Larry L. Inscore, Mansfield, for appellants.
Merkel, Campbell, Dill & Zetzer, Cleveland, Weldon, Huston & Keyser and George Hall, Mansfield, for appellee.
The subject of dispute confronting us is whether the testimony of the husband as to the performance by husband and wife of automobile driving experiments, in the presence of each other, at or about a public hospital entrance, for the purpose of the wife becoming more knowledgeable relative to the civil case in which she was then serving as a juror, is privileged under R.C. 2317.02, where such testimony is sought for the purpose of showing misconduct on the part of the juror wife.
We observe at the outset that the plaintiffs in this lalwsuit are entitled to certain substantive rights, including the right to have the case considered by the jury, fairly and impartially, upon the evidence received in open court in the trial, in the light of the trial judge's instructions as to the law governing the case. Here, the juror in her car and her husband in a second car reenacted the accident, as she had heard about it from the evidence, out of the presence of the court and the other jurors. This conduct on her part was grossly improper.
A basic principle of law applicable to the present situation was expressed by this court in Wicker v. Cleveland (1948), 150 Ohio St. 434, 83 N.E.2d 56, in which the syllabus reads:
'In the absence of evidence aliunde, the verdict of a jury may not be impeached by the testimony of a juror concerning the alleged misconduct of a member thereof.'
However, as plaintiffs contend, the testimony of the...
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...misconduct of another juror may not be considered without evidence aliunde being introduced first. See Diehl v. Wilmot Castle Co. (1971), 26 Ohio St.2d 249, 55 O.O.2d 484, 271 N.E.2d 261; Lund v. Kline (1938), 133 Ohio St. 317, 10 O.O. 411, 13 N.E.2d 575; Kent v. State (1884), 42 Ohio St. 4......
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