Hopkins v. Knapp & Spalding Co.

• Decision Date: 18 October 1894
• Citation: 60 N.W. 620,92 Iowa 212
• Court: Iowa Supreme Court
• Parties: HOPKINS v. KNAPP & SPALDING CO.

92 Iowa 212

60 N.W. 620

HOPKINS

v.KNAPP & SPALDING CO.

Supreme Court of Iowa.

Oct. 18, 1894.

Appeal from district court, Woodbury county; A. Van Wagenen, Judge.

Action to recover damages for alleged negligence causing the death of plaintiff's intestate. The case was tried to a jury, and a verdict returned in favor of the plaintiff for $100. Plaintiff moved for a new trial upon the grounds that the damages allowed are inadequate, that the verdict is contrary to the law and the evidence, that the court erred in the instructions given, and upon the further ground as follows: “For misconduct of the jury, in this: That Charles Ehlers, one of the jurors in the above-entitled action, when the case was submitted to the jury, and while in the jury room, considering said verdict, drank about one-half pint of intoxicating liquors, in support of which ground there is hereto attached, and made a part of this motion, the affidavit of D. H. Sullivan.” The court overruled said motion “on all grounds thereof, except the last, or No. 8, to wit, for misconduct of the juror in drinking liquor in the jury room; and as to that ground the court sustained the said motion, and the defendants at that time excepted. The court thereupon ordered a retrial of said cause, to which the defendants at the time excepted,” and from which ruling the defendant appeals. Affirmed.Wright, Hubbard & Yeomans, for appellant.

F. E. Gill and Lynn & Sullivan, for appellee.

GIVEN, J.

The only question presented on this appeal is whether the court erred in granting a new trial on the ground of misconduct of the juror. The other grounds of the motion are not to be considered, and could not be, as we have neither the evidence nor the instructions before us. A motion for a new trial is addressed to the sound discretion of the court, and its action thereon will not be reversed unless it is manifest that the discretion has been improperly exercised. Freeman v. Rich, 1 Iowa, 504;Ruble v. McDonald, 7 Iowa, 90;Pickering v. Kirkpatrick, 32 Iowa, 163;Pianoforte Co. v. Mueller, 38 Iowa, 552;Donahue v. Lannan, 70 Iowa, 73, 30 N. W. 8. This rule is especially applicable where a motion for a new trial is sustained. Peebles v. Peebles, 77 Iowa, 11, 41 N. W. 387;Morgan v. Wagner, 79 Iowa, 174, 44 N. W. 345. Where the evidence as to the alleged misconduct is conflicting, the action of the court in granting a new trial will not be interfered with. Wightman v. Butler Co., 83 Iowa, 692, 49 N. W. 1041. As to the alleged misconduct of the juror, we have the affidavits of D. H. Sullivan and of the juror. Mr. Sullivan states that immediately after reaching a verdict the juror Ehlers “offered me a pint bottle containing intoxicating liquors, which was about half empty; that he at the same time said that he had drank a part of said whisky while in the jury room, determining the verdict in said action; and that he put his head out of the window to drink, so that the rest of the jurors would not see...