Hooton v. Jarman Chevrolet Co., Inc.

• Decision Date: 17 February 1931
• Citation: 135 Or. 269,296 P. 36
• Parties: HOOTON v. JARMAN CHEVROLET CO., INC., ET AL.
• Court: Oregon Supreme Court

296 P. 36

135 Or. 269

HOOTON v. JARMAN CHEVROLET CO., INC., ET AL.

Supreme Court of Oregon

February 17, 1931

In Bank.

Appeal from Circuit Court, Coos County; J. T. Brand, Judge.

Action by M. O. Hooton against the Jarman Chevrolet Company Incorporated, and another. Defendants' motion for a new trial was denied, and after judgment for plaintiff defendants appeal.

Affirmed.

See also, 293 P. 604.

This action was brought to recover damages on account of personal injuries alleged to have been sustained by plaintiff in an automobile collision. The trial resulted in a unanimous verdict for the plaintiff in the sum of $5,050. The defendants filed a motion for a new trial based upon the alleged misconduct of the jury, which motion was denied. Judgment was entered in accordance with the verdict, and the defendants have appealed.

RAND J., dissenting.

H. S. Murphy, of Marshfield (Goss, Murphy & Skipworth, of Marshfield, on the brief), for appellants.

Leroy Lomax, of Portland, for respondent.

BROWN J.

The single point argued here relates to the ruling of the court upon defendants' motion for a new trial. The motion avers:

"That during the progress of said trial the Coos Bay Times, a daily newspaper of general circulation, published in Marshfield, Coos County, Oregon, published a news item stating that one Nathaniel G. Anderson was an adjuster with the Oregon Automobile Insurance Company, and that he was here transacting business in connection with the above entitled case, all as will more particularly appear from the newspaper clipping attached hereto and made a part hereof, and marked Exhibit A.

"2. That during the progress of said trial and before the verdict was returned James Nowlin, a juror in said case, told one E. W. Sullivan that he had made up his mind to return a verdict for the plaintiff because the defendant was insured against such damages as were involved in this case, as will more particularly appear from affidavits of said James Nowlin and said E. W. Sullivan marked Exhibits B and C respectively."

In his affidavit, Juror James Nowlin states:

"That I was one of the jurors duly empanelled to try the above entitled cause, and that shortly after said trial was begun and before the case was submitted to the jury, I learned that the defendants were insured against loss or damage arising out of circumstances and facts upon which the above entitled case was based, and that such knowledge on my part influenced me to return a verdict in favor of the plaintiff. * * * I expressed the above-mentioned knowledge and information to one E. W. Sullivan, and informed him that I would be influenced by such knowledge in returning a verdict in said case."

Affiant E. W. Sullivan states:

"That during the progress of the trial of the above entitled case one James Nowlin, a juror duly empanelled to try said case, and before the submission thereof to the jury for determination, told me that immediately after the trial began he made up his mind as to what verdict he would vote for and that he was influenced against defendants by the fact that the defendants carried insurance for such accidents."

M. W. Skipworth, of counsel for defendants, says, in his affidavit that:

"* * * During the progress of the trial * * * the attorneys for the defendant had no knowledge of the matters set forth in the attached motion and affidavits for new trial and that said facts were not learned until after the verdict was rendered therein."

The motion for a new trial was denied.

We have no information as to how, when, or where Nowlin obtained the knowledge that the defendants carried insurance, nor have we any knowledge or information as to whether the newspaper item referred to above was read by Nowlin or by any juror. Affiant E. W. Sullivan states that Nowlin made the declarations attributed to him "during the progress of the trial"; but he does not inform us whether such knowledge was or was not communicated to the defendants herein. While one of the attorneys makes an affidavit to the effect that "the attorneys for the defendant had no knowledge of the matter set forth in the attached motion," and that the facts set forth in such affidavits were unknown to them prior to the rendition of the verdict, yet neither he nor any one else claims that the juror's misconduct was unknown to the defendants. That statement alone is insufficient; nor is it strengthened by any matter appearing of record. With respect to the sufficiency of motions for a new trial upon the ground of misconduct of the jury, an eminent authority has written:

"* * * The motion must particularly state the nature of the...