Downes v. Plank

• Decision Date: 25 March 1964
• Citation: 390 P.2d 622,237 Or. 92
• Parties: A. B. DOWNES, Appellant, v. Conald PLANK and Majorie Hobson, Respondents.
• Court: Oregon Supreme Court

Page 622

390 P.2d 622

237 Or. 92

A. B. DOWNES, Appellant, v. Conald PLANK and Majorie Hobson, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 5, 1963.

Decided March 25, 1964.

Hale G. Thompson, Eugene, argued the cause for appellant. With him on the briefs were Thompson, Mumford & Woodrich, Eugene.

Ralph F. Cobb, Eugene, argued the cause for respondents. With him on the brief were Luvaas, Cobb & Richards, Eugene.

Before McALLISTER, C. J., and PERRY, O'CONNELL and DENECKE, JJ.

PERRY, Justice.

The plaintiff brought this action against the defendants seeking damages for personal injuries arising out of an automobile accident. The jury returned a verdict for the plaintiff. The defendants filed a motion for a new trial on the statutory grounds as set out in ORS 17.610:

'(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial.

'(2) Misconduct of the jury or prevailing party.

'(3) Accident or surprise which ordinary prudence could not have guarded against.

'* * *.'

The motion was granted and the plaintiff appeals.

The circumstances upon which the trial court acted are as follows:

The jury received the cause and retired to the jury room. After deliberation, the jury returned into court and announced they had reached a verdict. The written form signed by the foreman was delivered to the presiding judge and read in open court. This first verdict was for the defendants. The trial court inquired of the foreman if the verdict was unanimous and the foreman answered in the affirmative. The verdict was then received by the court and the jury ordered discharged. The members of the jury thereupon left the jury box and passed through the courtroom toward the jury room for the purpose of collecting their personal belongings, preparatory to leaving the courthouse. As the jury was leaving the courtroom, one of the jurors approached the bailiff and stated she was not satisfied with the verdict returned; that there was some misunderstanding. The bailiff then asked all of the jury to return to the jury room.

The court reporter was present when the juror spoke to the bailiff and makes affidavit to the following:

'I recall Juror #1 say to the Bailiff Lowell Smith, 'Do all Jurors have to vote yes on the same questions to be unanimous?' I interrupted and said, 'What questions do you mean, there are no questions?' And she replied, 'You know, the six questions.' I said again, 'There are no questions to bote on, just whether you vote for the plaintiff or the defendant.' She said, 'I don't know what they are, but the six things in the papers.' And I said, 'You must mean the grounds of negligence.' And she repeated that she just meant the six questions. I said 'Lowell, let's keep the jury here; are they all here?' and he said, 'They are all here.' And I said, 'I am going to talk to the Judge.''

The juror who made inquiry of the bailiff made affidavit to the following:

'* * * As I left the Courtroom I approached the Bailiff and I ask[ed] him if all jurors had to vote affirmatively on the same question to be unanimous. It was indicated to me by the Court Reporter that there were no particular questions to be answered and some discussion followed the exact details of which I do not remember, except that the Bailiff indicated that the Court was present in the hallway and so at that time I indicated to the Court that I did not think the verdict was unanimous and there was some misunderstanding. The Court indicated that nine people had to concur.'

An affidavit of the bailiff states that he did not in any manner advise any of the jurors, but only requested them to remain in the jury room and subsequently, at the direction of the trial court, directed them to return to the jury box. The affidavits of other jurors or persons in the courtroom were not presented.

After the jury had returned to the jury box, plaintiff requested that the jury be polled. The defendants joined in this request. The jury was polled and, after it appeared that a requisite number of jurors had not agreed, the trial court ordered the jurors to again retire in custody of the bailiff for further deliberation.

It is the contention of the plaintiff that, in resubmitting the cause to the jury under the circumstances set out, the case was in the same posture as if the jury on being polled disclosed the fact that a constitutional majority had not agreed, and the court had merely directed the jury to resume deliberation.

This contention cannot be sustained, for it clearly appears that after the cause was submitted to the jury, and before a constitutional number had concurred in the verdict set aside by the court, there had been a separation of the jury.

Separation of a jury during its deliberations is contrary of the express requirements of ORS 17.305, and, if objected to, constitutes reversible error. Nickelson v. Smith, 15 Or. 200, 14 P. 40.

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