Flood v. McClure

• Decision Date: 03 February 1893
• Parties: FLOOD v. MCCLURE
• Court: Idaho Supreme Court

32 P. 254

3 Idaho 587

FLOOD v. MCCLURE

Supreme Court of Idaho

February 3, 1893

CHANCE VERDICT.-Where a jury agree that each member thereof shall mark the sum which he thinks the plaintiff is entitled to recover on a slip of paper, and then ascertain by addition the amount of the sums so marked, and to then divide said amount by twelve, the number of jurors, and that the quotient resulting from such division shall be the amount of the verdict, such verdict is obtained by "resort to a determination of chance" within the meaning of that term, as used in subdivision 2, section 4439 of the Revised Statutes of 1887.

SAME-COMPETENT PROOF OF.-The affidavit of a juror is competent proof to show that the verdict was so obtained.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed and remanded and a new trial ordered, with costs of this appeal in favor of appellant.

R. E McFarland and Albert Hagan, for Appellant.

The jury did not arrive at their verdict in any other manner than as agreed on between themselves, and resorting to the determination of chance, in this, that the jury would write down certain amounts of damages to be recovered herein, and that said separate amounts should be added together and divided by twelve, and that one of the jurors, in placing his number, placed it at the sum of $ 500, which is in excess of any amount that the plaintiff could have recovered herein and in excess of any amount sued for herein exclusive of rent. The means of procuring the result were unauthorized. (Pawnee Ditch Co. v. Adams, 1 Colo. App. 250, 28 P 662.) It substitutes the fluctuating and uncertain hazards of the lottery for the deliberate conclusions of their reflections and interchange of views, and cites the following cases: Parham v. Harney, 6 Smedes & M. 55; Lee v. Clute, 10 Nev. 149; Kennedy v. Kennedy, 18 N. J. L. 450; City of Pekin v. Winkle, 77 Ill. 56; Dorr v. Fenno, 12 Pick. 520. The rule is, that if the jury resorted to this means in order to obtain a proper verdict and were not bound thereby, and after such means adopted the same as a verdict it would be good, but if they agreed to be bound, or were bound, by the sum ascertained by such means and made their verdict by such contingent result, without reserving the right to dissent, then the verdict is not good and will be set aside. (Wilson v. Berryman, 5 Cal. 46; Turner v. Water Co., 25 Cal. 399; Boyce v. Stage Co., 25 Cal. 473; Donner v. Palmer, 23 Cal. 47; Levy v. Breeman, 39 Cal. 489; Gimmell v. Phillips, 1 Mass. 541; Dana v. Tucker, 4 Johns. 487; Honey v. Ricketts, 15 Johns. 87; Toberts v. Foiles, 1 Cow. 238.)

Charles L. Heitman, for Respondent.

Section 4439, subsection 2, of the Revised Statutes of Idaho reads as follows: "Misconduct of Jurors.--And when any one or more of the jurors has been induced to assent to any general or special verdict, or that find in any case submitted to them by the court by a resort to a determination of chance, such misconduct may be proven by any one of the jurors." This statute is an exact copy of the California statute (3 Deering's Cal. Code Civ. Proc., sec. 657, subsec. 2), and was adopted by this state from the California statute, and is therefore governed by the construction placed upon that statute by the California court. (Bradbury v. Davis, 5 Colo. 265; 3 Morr. Min. Rep. 398.) Such a verdict, while it is vicious and irregular, is not a chance verdict within the meaning of the statute. (Turner v. Tuolumne Co. W. Co., 25 Cal. 401.) Such verdict is vicious and irregular, and must be set aside whenever the fact is made to appear by proper and competent evidence, but affidavits of jurors are not proper and competent evidence to impeach such verdict, but are inadmissible because there is no element of chance in such a verdict. (Cowperthwaite v. Jones, 2 Dall. 55; Hoare v. Hindley, 49 Cal. 274.) The true rule, as laid down by the California courts, from which state we adopt our statutes, together with the interpretation and construction of the same by the California courts and by the leading courts of the Union, is that a chance verdict can be impeached by the affidavits of the jurors, where a statute law allows it to be done, but that a verdict not obtained by a resort to a determination by chance, although reached by methods vicious and irregular, must be impeached by evidence other than that furnished by the jurors. (Turner v. Tuolumne Co. W. Co., 25 Cal. 399; Boyce v. California Stage Co., 25 Cal. 473; Hoare v. Hindley, 49 Cal. 274; Hunt v. Elliott, 77 Cal. 588, 20 P. 132; People v. Gray, 61 Cal. 183, 44 Am. Rep. 549.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the respondent against the appellant to recover $ 550 damages, alleged to have been sustained by reason of the appellant, as sheriff of Kootenai county, having levied upon certain property claimed by the respondent, to satisfy an execution issued in the case of Liebe & Co. against one Henry Farley.

It is alleged that said property was of the value of $ 470.08, and that by reason of the levy and sale under said execution respondent was damaged in that sum, and in the further sum of seventy-five dollars for certain rents. The answer denies the material allegations of the complaint, and avers that the property referred to in the complaint was the property of one John Farley, the execution debtor above referred to, and not the property of plaintiff, and alleges that the pretended transfer from Farley to Flood was fraudulent and made with intent to hinder, delay and defraud Farley's creditors.

The action was tried by the court with a jury, and judgment rendered against appellant for the sum of $ 500. During the trial the court withdrew the seventy-five dollars claimed for rent from the consideration of the jury. This appeal is from the order overruling the motion for a new trial and from the judgment.

The assignment of errors contains eighteen specifications. The first is the misconduct of the jury in arriving at their verdict by resorting to a determination thereto by chance. It is shown by the affidavits of Ernest Rhienhardt, J. G. Hawkins and O. J. Johns, three of the jurors who tried said cause, that the jury arrived at their verdict by agreeing that each juror should mark on a slip of paper the amount which he considered the plaintiff entitled to recover, and thereafter the several sums so marked should be added together and the amount thereof divided by twelve, the number of jurors, and that the quotient arising from such division should be the verdict, and that said verdict was arrived at in that way and in no other. It is also shown by the affidavit of Rhienhardt that at least one of the jurors, in writing upon the slip of paper the sum which he thought plaintiff was entitled to recover, wrote thereon the sum of $ 500, which sum was added with the other sums written by the remaining jurors, and that the aggregate sum was divided by twelve, which resulted in making the sum mentioned in the verdict. The proof of the method used to determine the amount of the verdict was not disputed.

Verdicts obtained in this manner have been condemned by many courts, and if the method used in arriving at the verdict comes within the prohibition of subdivision 2 of section 4439 of the Revised Statutes of 1887, the verdict should have been set aside and a new trial granted. Said subdivision 2 provides as follows: "Misconduct of the Jury.--And when any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any of the jurors."

Counsel for the respondent admits that a verdict so obtained is vicious and irregular, but contends that it is not a verdict obtained by a resort to the determination of chance within the meaning of that term as used in the statute, and cites, Turner v. Tuolumne Co. W. Co., 25 Cal. 397, as an authority in his favor. In that case the jury arrived at their verdict in the same manner as in the case at bar, and the court said: "Under the facts of this case as we have assumed them to be, the verdict is undoubtedly vicious and ought to be set aside. The only question for us to decide is, whether the affidavits of the jurors can be received for the purpose of establishing those facts. Although there is some conflict of authority upon this question, the better opinion seems to be that by the common law, the affidavits of jurors cannot be received for the purpose of impeaching their verdict, but may be admitted in support of it. But this rule of the common law has been changed in this state to a certain extent by the statute."

The learned court then quotes the second subdivision of section 193 of the California Practice Act, which is the same as subdivision 2 of section 4439 of the Revised Statutes of Idaho above quoted, and the court further says: "Being in derogation of the common law, this statute must be strictly construed and cannot be held to include such kinds of misconduct as do not come clearly within the descriptive terms of the act." The court, after referring to a number of authorities on the point, whether a verdict obtained in the manner set forth was "a resort to the determination of chance" within the meaning of that expression as used in said section, arrives at the following conclusion: "We are therefore of the opinion that the verdict in this case is not a chance verdict within the meaning of the second subdivision of section 193 of the Practice Act, and for that reason the affidavits of the jurors by whom it was rendered cannot be admitted to impeach it."

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