Hinkel v. Oregon Chair Co.

• Decision Date: 16 May 1916
• Citation: 157 P. 789,80 Or. 404
• Parties: HINKEL v. OREGON CHAIR CO.
• Court: Oregon Supreme Court

157 P. 789

80 Or. 404

HINKEL v. OREGON CHAIR CO.

Supreme Court of Oregon

May 16, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

On petition for rehearing. Petition denied.

For former opinion, see 156 P. 438.

Schmitt & Schmitt, of Portland, for appellant. Wilbur Spencer & Beckett and F. C. Howell, all of Portland, for respondent.

BURNETT J.

In an earnest petition for rehearing the plaintiff urges us to hold that the affidavits of jurors are admissible in certain cases to overturn their verdict. The misconduct of which he complains in this case is said to have resulted from a statement of a member of the jury in the deliberations of that body to the effect that he knew the plaintiff and was present and saw him injured some years previously when he lost the sight of his right eye, and that the present litigation was a scheme on his part to get some money out of the defendant for the former injury, all notwithstanding the fact that the juror had made statements under oath on his voir dire in substance that he did not know the plaintiff and had no bias or prejudice against him.

It is indeed true that if the falsity of the juror's testimony on his preliminary examination as to material matters is shown by competent evidence, a new trial should be granted at the motion of the losing party. The question to be determined is whether the affidavits of his fellow jurors are competent to prove the occurrences in the secrecy of the jury room as a means of showing the untruthfulness of the juror's statements when being examined for his qualifications. In the petition for rehearing counsel rely strongly upon State v. Lauth, 46 Or. 342, 80 P. 660, 114 Am. St. Rep. 873, and the precedents hereinafter noted. A reading of the Lauth Case discloses that the affidavits of jurors were not used to sustain the motion for a new trial. The voir dire examination of the juror was shown by an official stenographic report. The testimony relied upon to impeach his examination was afforded by the affidavits of a constable and one of counsel for the defendant. The affidavit of the juror was considered in support of the verdict, but the case does not teach that his declaration under oath could have been used to defeat it. The principle is not directly discussed in Pearcy v Mich. Mut. Life Ins. Co., 111 Ind. 59, 12 N.E. 98, 60 Am. Rep. 673. State v. Parker, 25 Wash. 405, 65 P 776, is in point for the plaintiff's contention but is not convincing in the light of the previous uniform holding of this court. In Hayne on New Trial and Appeal, § 45 et seq., it is laid down as a rule of practice that if a juror be examined as to his qualifications and do not answer truly, a new trial will be granted; but in section 73 of the same volume the author says:

"It is well settled in California that the affidavits of jurors cannot be received to impeach their verdict except in the case permitted by the statute."

The exception refers to cases where a verdict is reached as the result of some chance device. As late as Spain v. O. W. R. & N. Co., 153 P. 470, it is stated in the opinion by Mr. Justice McBride:

"Neither is it necessary to cite authorities to the effect that the affidavits of jurors will not be received to impeach such a verdict (meaning a quotient verdict). The distinction attempted to be made by counsel between affidavits made by jurors where a unanimous verdict is required, and cases where the affidavits are made by nonconcurring jurors under statutes such as ours, where three-fourths of the jurors may return a verdict, finds no support in the authorities. The rule is the same in either case."

In Saltzman v. Sunset Telephone & Telegraph Co., 125 Cal. 501, 58 P. 169, discussing this question, Mr. Justice Temple used this language:

"The independence of the jury and the value of their discussions would be lessened if the reasons given by any juror for his opinions or for his verdict could be reported to the court and criticised, and his motives impugned for remarks made in the jury room. And such reports would be more likely to be made by dissenting jurors who had been heated by earnest debate and defeated by the final vote. But the independence

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