Dillard v. Ackerman

• Decision Date: 17 February 1984
• Parties: Charles D. DILLARD, Appellant, v. Catherine ACKERMAN and Prudential Property and Casualty Company, Appellees.
• Court: Kentucky Court of Appeals

Page 560

668 S.W.2d 560

Charles D. DILLARD, Appellant, v. Catherine ACKERMAN and Prudential Property and Casualty

Company, Appellees.

Court of Appeals of Kentucky.

Feb. 17, 1984.

James David Bryant, Harlin, Parker & Rudloff, C. Randall Michel, Bowling Green, for appellant.

Michael V. Pearson, Robert D. Simmons, Bowling Green, for appellee.

Before MILLER, COOPER and DUNN, JJ.

DUNN, Judge.

The appellee, Catherine Ackerman, sued the appellant, Charles D. Dillard, as the result of an automobile accident which happened on April 22, 1980, on Antioch Road in Warren County. The appellee alleged personal injuries and property damages, and the appellant counterclaimed for damages to his truck.

The first trial of the case resulted in a jury verdict denying relief to each party. Judgment to this effect was entered on July 1, 1982. On the same date, the appellee Ackerman moved for judgment notwithstanding the verdict and alternatively for a new trial. On July 21, 1982, the court entered an order granting a new trial. A second trial resulted in a verdict in favor of the appellee Ackerman in the total amount of $30,022.25. This appeal is taken from the order of the Warren Circuit Court granting the new trial after the first trial was had, from the trial order and judgment of the second trial and from the order of the trial court overruling the appellant's motion for a new trial and alternatively for judgment notwithstanding the verdict following the second trial.

In the first trial, the trial court granted a new trial because the court's bailiff sat in the jury room while it accomplished its deliberations which resulted in relief being denied to both parties. Actually, his location during the deliberations was not actually in the jury room itself, but in a foyer-like arrangement immediately next to the jury room with an open doorway between them. The combination of the two was shut off by a closed doorway so that, in effect, the bailiff was present in the room with the jury.

The appellant's first argument on appeal is that the trial court erred in granting the appellee's motion for a new trial on the basis that the bailiff was present in the jury room during deliberations since no prejudice was shown even though his presence constituted an appearance of evil.

Our law is well settled that a jury or jurors may not impeach the verdict of the jury unless the verdict was arrived at by lot or by some other method. Facts may be shown from other sources which may impeach the verdict, however. Waitmann v. Marksberry, 200 Ky. 1, 254 S.W. 432 (1923). The affidavit of a juror can be used to support a verdict. Gregorich v. Jones, Ky., 386 S.W.2d 955 (1965). See also, George v. Standard, Ky., 431 S.W.2d 711, 714 n. 4 (1968), quoting the effect of the holding in Romans v. McGinnis, 156 Ky. 205, 160 S.W. 928 (1913).

It is obvious that if the above rules are applied, it is impossible to prove prejudice resulting from the bailiff's presence in the room even though some prejudicial events might have taken place as indicated by the inadmissible impeaching affidavit of the juror submitted by the appellee in support of a motion for a new trial. Of course, under these rules, the trial court could have considered the affidavit of the foreman of the jury filed by appellant in support of the first verdict to the effect that no communication was had between the jury and the bailiff. This ignores the facts, however, that such information is limited to the knowledge of the foreman. It could have happened that a communication took place that he was unaware of. It also ignores the intimidation factor created by the bailiff's very presence in the jury room. Applying these principles to the case at hand, therefore, would seem to lead us to conclude that the trial court did commit error since there was no showing of prejudice. We do not thus so conclude, however.

Kentucky has taken an opposite position as to irregular conduct affecting the jury as a whole in Commonwealth, Dept. of Highways v. Pitman, Ky., 425 S.W.2d 726, 728 (1968), wherein the court stated:

Recent opinions handed down by this court take a firm line in situations involving irregular conduct which affects the jury as a whole, no showing of prejudicial influence being required.

One of the cases it cites is Juett v. Calhoun, Ky., 405 S.W.2d 946, 950 (1966), and the court quoted from it as follows:

Once again we are confronted with the "appearance of evil" principle. Great care must be taken to assure the litigants--and the public generally--that jury trials are conducted fairly and free from opportunities for contamination. We do not suggest that anything improper was said or done by any lawyer or litigant--but the truth is--if there had been, it would be substantially impossible to prove.

We agree with not only this principle...