Gordon v. Trevarthan

• Decision Date: 02 October 1893
• Citation: 34 P. 185,13 Mont. 387
• Parties: GORDON v. TREVARTHAN.
• Court: Montana Supreme Court

34 P. 185

13 Mont. 387

GORDON v. TREVARTHAN.

Supreme Court of Montana

October 2, 1893

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by John A. Gordon against William Trevarthan. From an order granting a new trial, plaintiff appeals. Order affirmed.

Statement of the case by the justice delivering the opinion:

The plaintiff appeals from an order granting a new trial. The verdict and the judgment were in favor of the plaintiff for $167.63. The defendant moved for a new trial upon one ground only, to wit, "misconduct of the jury." Section 296, subd. 2, Code Civil Proc. This section and subdivision are as follows: "The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of said party *** Second, misconduct of the jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavits of any one or more of the jurors." In support of this motion the defendant filed an affidavit made by William J. McNamara and David Meiklejohn, two of the jurors, who deposed as follows: "That there was a disagreement among the members of the jury as to the verdict which should be rendered in said cause, and a proposition was thereupon made and agreed upon by the members of the jury that each member should indicate the amount for which he thought the plaintiff should recover, if at all, and that the sums thus indicated should be added together, and the sum so found should thereupon be divided by twelve, and the quotient thus found should be and constitute the amount in which plaintiff should recover; and said jurors agreed to abide by the result arrived at in this manner. That in this manner the agreement upon a verdict was reached, and the verdict of $176 ($167.63) arrived at. Affiants further state that they, and each of them, were induced to assent to said verdict on account of said proposition so made and carried out." The plaintiff, in opposing the motion, filed the affidavit of J. R. Silver, W. H. Young, Joel Crossman, and David Meiklejohn. These jurors, in their affidavit, present a somewhat different view of the conduct of the jury than that set out in the other affidavit. They say, in effect, that the jurors agreed that each one should set down an amount that he thought plaintiff should recover, and that the amount should be divided by 12; that each thereupon set down an amount, and that the total was divided by 12, and the quotient found to be $167.63; that, after this sum was found, the jurors discussed the matter as to whether that should be the amount of the verdict, and it was unanimously agreed that said sum should be the verdict, and it was thereupon inserted in the verdict, and the jurors were asked by one of their number if that should be their verdict, and they, or most of them answered "Yes," and no objection was made by any juror. Thereupon the foreman signed the verdict, and it was returned into court. The motion for new trial was heard upon these affidavits, and by the court granted. The plaintiff appeals from this order.

W. I Lippencott, for appellant.

Chas. R. Leonard, for respondent.

DE WITT, J., (after stating the facts.)

The question upon this appeal is upon what the cases and books have called "quotient verdicts." See cases cited below and in the briefs of counsel. Verdicts arrived at by methods such as described in the McNamara affidavit in this case have been held bad when properly before courts on motion for new trial. But the facts vitiating such verdicts are the agreement by the jurors to go into the process of marking amounts, adding them, and dividing the same by 12, and the agreement that the result so obtained shall be the verdict without further consideration; and the fact that such proceedings were taken by the jury in pursuance to such an agreement, and that the result so obtained was returned as the verdict. Thomp. & M. Juries, § 408 et seq., and numerous cases cited; Goodman v. Cody, 1 Wash. T. 329, 34 Amer. Rep. 815, note. On the other hand, it is held that a verdict reached after the quotient process having been had by the jury is not vicious "where the calculation is purely informal, for the purpose of ascertaining the sense of the jury, and every juror feels at liberty to accept, reject, or qualify the result, according to his convictions. Under such circumstances the jury may adopt as their verdict the exact quotient found, and it will be good." Thomp. & M. Juries, § 410, and cases cited and also cited in appellant's brief. The distinction between good verdicts and bad verdicts where the quotient process has been used is well stated in a very old case, as follows: "If the jurors previously agree to a particular mode of arriving at a verdict, and to abide by the contingent result at all events, without reserving to themselves the liberty of dissenting, such a proceeding would be improper; but if the means is adopted merely for the sake of arriving at a reasonable measure of damages, without binding the jurors by the result, it is not objection to the verdict." Dana v. Tucker, 4 Johns. 487. See, also, Hayne, New Trials & App§ 71.

The question, then, in this case is, what was the nature of the resort to the quotient process by this jury? The affidavit of Meiklejohn and McNamara is clearly to the effect that the conduct of the jury was of the kind first above described,--the kind which the cases hold vitiates the verdict. The affidavit of Young and others tends to present the conduct of the jury as innocent, and being simply informal, for the purpose of obtaining the sense of the jurors. Meiklejohn signed both affidavits, but McNamara stands upon his affidavit, and did not sign the Young affidavit. Our statute says that whenever any one of the jurors shall have been induced to assent to a verdict by a resort to the determination of chance, such misconduct may be proved by the affidavit of such juror. Such conduct is so defined by the statute to be misconduct. So it appears from McNamara's affidavit that at least one juror--that is himself--was induced to assent to this verdict by reason of the...