Gardner v. Malone

• Decision Date: 29 November 1962
• Docket Number: No. 36295,36295
• Court: Washington Supreme Court
• Parties: Arnie GARDNER and Cleta Gardner, husband and wife, individually, and Cleta Gardner, as Guardian ad Litem for Kent Gardner, a minor, Appellants, v. John MALONE, Respondent.

Page 836

60 Wn.2d 836

376 P.2d 651

Arnie GARDNER and Cleta Gardner, husband and wife,

individually, and Cleta Gardner, as Guardian ad

Litem for Kent Gardner, a minor, Appellants, v. John MALONE, Respondent.

No. 36295.

Supreme Court of Washington, Department 1.

Nov. 29, 1962

Tonkoff, Holst & Hopp, J. P. Tonkoff, Yakima, John R. Lewis, Moses Lake, for appellants.

Brethorst, Fowler, Bateman, Reed & McClure, J. Edwin Thonn, Seattle, for respondent.

WEAVER, Judge.

Plaintiff, a minor, and several other boys, were passengers in an automobile driven by one Allan Edwards. The Edwards' automobile collided with an automobile driven by John Malone on the Steinmetz road, two miles northeast of Coulee City, Washington. Plaintiff was seriously injured.

By guardian ad litem, plaintiff commenced this action against defendant Malone for damages for personal injuries. After an extended trial, the jury returned a verdict for defendant. Plaintiff appeals from a judgment denying his motion for a new trial and dismissing his action.

This appeal is upon a short record pursuant to Rule on Appeal 34(3), RCW Vol. O. Plaintiff advances five assignments of error. Two assignments of error are not included in his '* * * concise statement of the points on which he intends to rely on the appeal' as required by the rule; hence, we cannot consider them. Johnson Service Co. v. Roush, 57 Wash.2d 80, 94, 355 P.2d 815 (1960); Palmer v. Waterman Steamship Corp., 52 Wash.2d 604, 608, 328 P.2d 169 (1958); Cominos v. Kalkanes, 37 Wash.2d 843, 849, 226 P.2d 863 (1951).

Plaintiff's three remaining assignments of error are directed to alleged misconduct of the jury. Later in this opinion, we will discuss each in particular, after first setting the screen upon which to project them.

Rule of Pleading, Practice and Procedure 59.04W, RCW Vol. O, provides in part:

'The former verdict * * * may be vacated and a new trial granted, * * * on the motion of the party aggrieved for any one of the following causes materially affecting the substantial rights of such parties:

'1. * * *

'2. Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors; * * *.' ¹ (Same as RCW 4.76.020(2))

'The motion for a new trial shall state the grounds or causes for which a new trial is asked, and if made for any of the causes mentioned in RCW 4.76.020(1), (2), (3), or (4), the facts upon which it is based may be shown by affidavit.' ²

In considering the effect of jurors' misconduct, it is important to bear in mind that there are two distinct problems: First, the type of evidence that may properly be received to establish the defect; and second, the types of irregularities or errors that may be shown.

Mischief ³ was introduced into the first problem by Lord Mansfield's opinion in Vaise v. Delaval, 1 T.R. 11, 99 Eng.Rep. 944 (1785). The opinion is short:

'Affidavit of a juror that the jury, having been divided, tossed up, and that the plaintiff had won, rejected.

'Upon a motion by Law for a rule to set aside a verdict, upon an affidavit of two jurors, who swore that the jury, being divided in their opinion, tossed up, and that the plaintiff's friends won, in which was cited, Hale v. Cove, 1 Stra. 642.

'Per Lord Mansfield, Ch.J. The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means.

'Rule refused.'

The rule of the Vaise case, supra, has never been the law of this jurisdiction. Rule of Pleading, Practice and Procedure 59.04W(2) and RCW 4.76.050 (and their statutory predecessors as outlined in Footnotes 1 and 2) specifically provide that a verdict determined by chance or lot may be challenged by the affidavit of a juror; and that the facts upon which a motion for new trial is based may be shown by affidavit, without excluding the affidavits of jurors, as did the Lord Mansfield rule.

In 1871, the predecessor of this court recognized that the 1869 statutes (see Footnotes 1 and 2) were in derogation of the common law. The court held a 'quotient verdict' invalid as 'a composite fraud washed with a golden name', because it had been determined by chance or lot. Invalidity was established by affidavits of jurors. Goodman v. Cody, 1 Wash.T. 329, 34 Am.Rep. 808 (1871).

In State v. Parker, 25 Wash. 405, 65 P. 776 (1901), it was shown by the affidavits of two jurors that one juror stated to the jury, during consideration of the case in the jury room, that he knew defendant was guilty and that he belonged to a 'gang of toughs' implicated in a homicide.

In reversing the judgment and ordering a new trial, the court announced the rule that is dispositive of this case. The court said:

'* * * In considering the affidavits filed, we entirely discard those portions which may tend to impeach the verdict of the jurors, and consider only those facts stated in relation to misconduct of the juror, and which in no way inhere in the verdict itself. It is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine what was the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors. We do not see how any other conclusion can be reached than that they were highly prejudicial, including, as they did, the statement of alleged damaging facts concerning appellant which had not been introduced in evidence upon the trial.' p. 415, 65 P. p. 779, (Italics ours.)

This leads to a consideration of the second problem--the type of irregularities or errors that may be established by jurors' affidavits. Although affidavits may be filed in support of a motion for a new trial, they are subject to certain court-imposed limitations.

Our decisions are replete with the statement that 'a juror's testimony or affidavit is not receivable to impeach his own verdict.' ⁴ Of this, Professor Wigmore said:

'* * * this rule or thumb is in itself neither strictly correct as a statement of the acknowledged law nor at all defensible upon any principle in this unqualified form. It is a mere shibboleth and has no intrinsic signification whatever. * * *' 8 Wigmore, Evidence (McNaughton Rev.1961) § 2345.

In spite of this criticism, we believe a workable rule has evolved from our decisions. The crux of the problem is whether that to which the juror testifies (orally or by affidavit) in support of a motion for a new trial, inheres in the verdict. If it does, it may not be considered; if it does not, it may be considered by the court as outlined in State v. Parker, supra. One test is whether the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him; if so, the statements cannot be considered for they inhere in the verdict and impeach it. If they do not, it then becomes a matter of law for the trial court to decide the effect the proved misconduct could have had upon the jury. Another test is whether that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes.

The distinction between motive and irregularities may sometimes be shadowy and difficult to perceive, but

'* * * it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, either favorably or unfavorably, by the circumstances:

'that one or more jurors misunderstood the judge's instruction; ⁵

'or were influenced by an illegal paper or by an improper remark of a fellow juror; ⁶

'or assented because of weariness or illness or importunities;

'or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence; ⁷ 'or had been influenced by inadmissible evidence; ⁸

'or had decided upon grounds which rendered newly discovered evidence immaterial;

'or had omitted to consider important evidence or issues; ⁹

'or had miscalculated accounts by errors of fact or of law; ¹⁰

'or had by any other motive or belief been led to their decision.' ¹¹ 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2349, p. 681. (Footnotes in the above quotation furnished by the court.)

On the other hand, if the juror's affidavit establishes misconduct of the jury by facts or circumstances that do not inhere in the verdict, the facts must be considered. Dibley v. Peters, 200 Wash. 100, 93 P.2d 720 (1939) and cases cited. See State v. Rose, 43 Wash.2d 553, 262 P.2d 194 (1953).

In Maryland Casualty Co. v. Seattle Electric Co., 75 Wash. 430, 134 P. 1097 (1913), the court said:

'* * * Many courts make no distinction between affidavits of jurors as to the fact of misconduct and affidavits as to the effect of that misconduct upon their deliberation, holding that both are things which inhere in the verdict and that jurors' affidavits or statements as to either the fact or its effect are inadmissible because tending to impeach the verdict. [Citing authorities] * * * In this state we have applied the rule less drastically. We have in certain cases used language implying that affidavits of jurors should be considered in so far as they stated the facts showing misconduct but not as showing the effect of such misconduct on the verdict, the latter being for the court od determine from the facts.

* * *

* * * 'This application of the rule seems to us to meet every purpose of...