Fordyce v. Cappel

• Decision Date: 09 March 1965
• Docket Number: No. 51550,51550
• Citation: 257 Iowa 763,133 N.W.2d 664
• Parties: Marian FORDYCE and James A. Fordyce, Plaintiff-Appellants, v. Wesley CAPPEL, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 664

133 N.W.2d 664

257 Iowa 763

Marian FORDYCE and James A. Fordyce, Plaintiff-Appellants, v. Wesley CAPPEL, Defendant-Appellee.

No. 51550.

Supreme Court of Iowa.

March 9, 1965.

Rehearing Denied May 5, 1965.

Pattee & Lemon, Independence, for appellants.

Shuttleworth & Ingersoll, Cedar Rapids, for appellee.

HAYS, Justice.

This is an action for damages for injuries sustained in a collision between a car owned and being driven by defendant and a car in which plaintiffs were riding as passengers and being driven by a Mr. Fricke. There was a verdict for defendant. Plaintiffs filed a motion for a new trial which the trial court overruled and they appeal. Three errors are assigned as a basis for a reversal. They are:

(1) Trial court erred in overruling plaintiffs' motion for a new trial based upon alleged irregularity in the proceedings of court officials and the jury contrary to Rule 199 I.R.C.P., 58 I.C.A.

(2) Trial court erred in overruling plaintiffs' motion for a new trial based on misconduct of the jury.

(3) Court erred in overruling plaintiffs' motion for a new trial based upon the ground the verdict does not effectuate substantial justice.

I. The entire record consists chiefly of affidavits of jurors, court officials and others as to what took place during the jurors' deliberation: It appears without contradiction that while the jurors were at dinner in charge of the acting bailiff, some of them sat at the same table with the acting bailiff. During this time there was a general conversation carried on by the jurors and the acting bailiff, although it appears by affidavit that nothing relating to the case then under deliberation by the jurors was discussed. This it is claimed is a violation of Rule 199 I.R.C.P. and is clearly misconduct. It may be conceded that such constituted misconduct as being in violation of Rule 199 I.R.C.P. This Rule provides '(b) On final submission, the jury shall retire for deliberation, and be kept together in charge of an officer until they agree on a verdict or are discharged by the court. Such officer must not suffer any communication to be made to them, nor make any himself, except to ask them if they have agreed on a verdict, unless by order of court; nor communicate to any person the state of their deliberations, or the verdict agreed upon before it is rendered'. The general conversation may have been a technical violation of this rule and perhaps misconduct upon the part of both the jurors and the acting bailiff. In determining these questions relative jury misconduct, there is no presumption that a misconduct in and of itself gives rise to a need for a new trial. In fact this court has said relative to such matters 'In order to justify a new trial on the basis of misconduct of jurors it must appear the misconduct was calculated to, and it is reasonably probable [that it] did, influence the verdict'. Mongar v. Barnard, 248 Iowa 899, 82 N.W.2d 765. In the instant case nothing appears except that there was misconduct but nothing to which the above cited rule may be applicable in the absence of some showing as to what the conversations were. To hold otherwise is to merely surmise or by conjecture assume that any type of conversation, such as passing the time of day would invalidate a verdict in which case few if any verdicts could survive such a rigid test.

There is nothing in the assigned error upon which the trial court could with any sound...