Heasley v. Nichols

• Decision Date: 28 April 1905
• Parties: HEASLEY v. NICHOLS.
• Court: Washington Supreme Court

80 P. 769

38 Wash. 485

HEASLEY v. NICHOLS.

Supreme Court of Washington

April 28, 1905

Appeal from Superior Court, Lincoln County; S. J. Chadwick, Judge.

Action by Laura Heasley against Dura L. Nichols. From a judgment for plaintiff, defendant appeals. Reversed.

Merritt & Merritt and Myers & Warren, for appellant.

Martin & Grant, E. D. Reiter, and A. C. Routhe, for respondent.

MOUNT, C.J.

Action for breach of promise of marriage. The cause was tried to the court and a jury, and verdict was returned in favor of the plaintiff for $4,560. The defendant filed a motion for new trial upon numerous grounds. Among the grounds were the following: '(1) Irregularities * * * by which defendant was prevented from having a fair trial. * * * (5) Excessive damages, appearing to have been given under the influence of passion or prejudice. * * * (7) Errors in law occurring at the trial, and excepted to at the time by the defendant.' The first ground above stated was tried upon affidavits. Upon the hearing of the motion the court adjudged the damages excessive, and ordered a new trial unless the plaintiff within 15 days thereafter should file a remission of the amount found by the jury to $2,000, excluding costs. Within the time allowed, such remission was filed, and thereupon the court denied the motion for a new trial and entered a judgment for $2,000 and costs. The defendant has appealed and insists, first, that one of the jurors trying the cause was prejudiced and biased. The juror Dan Donahue upon his voir dire examination testified, in substance, that he was not acquainted with the plaintiff; that he was slightly acquainted with the defendant; that he had heard there was such a case coming up, but that he knew nothing about the case, had formed or expressed no opinion on the case, and had no opinion upon the merits at that time. He was upon these statements accepted by both sides as a competent and qualified juror. After the trial of the case it was first learned that these statements were untrue. Three disinterested persons made affidavits to the effect that the juror had discussed the case with them, or in their presence before he was called as a juror, and therein had expressed his opinion in favor of the plaintiff. One of these affiants stated that Donahue said, after expressing an opinion, 'I would like to get on the jury, for I would give her all she sued for, and a damn sight more.' These affidavits were not denied. The respondent filed two affidavits, also showing that the juror Donahue knew about the case, and had formed and expressed an opinion on the merits, and had said to two different persons, 'If he were permitted to sit on the jury he would not give the girl a God damn cent.' These facts stand conceded on the record. But it appears that neither party nor his counsel knew of the facts until after the trial. It is plain that this juror was disqualified by reason of his bias and prejudice. He concealed the fact, and by reason of his misrepresentations was taken and permitted to sit upon the jury. Both sides to the controversy were entitled to twelve lawful and unbiased jurors to try the questions of fact in the case. When it was shown to the court that one of the twelve selected was unfit to sit as a juror, either party deeming himself aggrieved was entitled as a matter of right to a new trial.

It is urged by respondent that the juror Donahue was opposed to the verdict returned, and did not agree thereto because it was in his opinion, excessive, and that therefore the appellant is not injured. It appears, as stated by the affidavits of several of the jurors, that Donahue did not agree to the verdict as returned. It also appears that he said to two or three of them that the verdict was excessive. But it appears conclusively that he favored a verdict for the respondent in some amount between $1,000 and $8,000. There would be much force in the argument of respondent upon this question if it had been shown that the juror favored a verdict for the appellant. But it is not so shown. We think that upon a question so highly important as the fairness of a juror injury should be conclusively presumed when it is shown that a juror is biased and prejudiced and unfair, and is in favor of returning a verdict for the successful party. According to the affidavits, the juror was biased against the prevailing party. He was also prejudiced against the appellant. He was biased against both parties, and was, in any event, unfit for a juror in the case,...