Hyman v. Eames

• Citation: 41 F. 676
• Parties: HYMAN v. EAMES et al.
• Decision Date: 21 March 1890
• Court: U.S. District Court — District of Colorado

41 F. 676

HYMAN v. EAMES et al.

United States Circuit Court, D. Colorado.

March 21, 1890

C. J Hughes, for plaintiff.

Willard Teller and Wolcott & Vaile, for defendants.

HALLETT J.

The principal point in support of the motion for new trial is that one of the jurors had prejudged the case, and the fact was concealed from plaintiff and his counsel, and was not ascertained by them until after the verdict was returned. Upon examination on voir dire the juror stated that he was not acquainted with the premises in dispute; that he knew nothing of the controversy, and had formed no opinion concerning it; and that he was entirely impartial between the parties. Plaintiff files the affidavit of Jesse Sinclair, in which the latter deposes that he met the juror Atkinson at Aspen, in the months of August and September, 1889, and had several conversations with him concerning the litigation between these parties. He describes the conversations in these words:

'That affiant in these conversations argued that the ore showing and mined in the Bonny Bell claim had broken over from the ridge above, and did not believe that it was a continuous vein or lode, within the meaning of the law, but simply a 'break over.' That the said Atkinson argued with affiant to the contrary, claiming that the Bonny bell had a vein with an apex, and that the same was continuous, and that the owners of said Bonny Bell claim had a right to follow it. And the said Atkinson also stated that the Bonny Bell had won the first suit, would win the second, and would win every time. That his remarks with regard to the litigation was in favor of the Bonny Bell, and he expressed his belief in the correctness of their position.' In an affidavit filed by Atkinson, he denies that he had any such conversations with Sinclair, and says that he is not acquainted with him, and reaffirms his testimony given at the trial as to his impartiality. Upon this testimony alone, the deposition of Sinclair being contradicted by that of the juror, it would be difficult to say that the fact was established. But there is more in the record. The juror having stated that he was not acquainted with Sinclair, three witnesses testify that they saw him in conversation with Sinclair, and apparently in familiar intercourse with him, at Aspen, on several occasions during the summer of 1889. One of these witnesses, George R. Ford, was certainly mistaken in the person of Sinclair, but there seems to be no reason for discrediting the others. So, also, the juror was not wholly ingenuous in his testimony as to his residence, occupations and associations. He told the counsel that he lived in Denver; that he worked for the Colorado Fuel Company; that he had mined at Red Cliff and Ashcroft, and in 1885 on the Aspen View claim at Aspen. This was true, but it was not the whole truth. He had in fact been much in Aspen during three months of the year 1889; and in September of that year, about two months before the trial, he had worked 11 days in a mine at that place. The questions propounded to him and to other jurors were obviously intended to elicit the knowledge and information of the juror concerning the mines of that locality, and in particular whether he had been subject to the local opinions and prejudices which prevail in a mining camp as to the merits of mining controversies. In answering that he lived in Denver, and was employed there, and that he had mined in other camps, but not at Aspen, since 1885, he conveyed the impression that he had no occupation at Aspen and was not acquainted with affairs...