Jacobsen v. Gamber

• Decision Date: 12 November 1957
• Docket Number: No. 49247,49247
• Citation: 86 N.W.2d 147,249 Iowa 99
• Parties: Kenneth JACOBSEN, a Minor, by his next friend, Alvin Jacobsen, Appellee, v. Hugo R. GAMBER, Appellant.
• Court: Iowa Supreme Court

Page 147

86 N.W.2d 147

249 Iowa 99

Kenneth JACOBSEN, a Minor, by his next friend, Alvin Jacobsen, Appellee, v. Hugo R. GAMBER, Appellant.

No. 49247.

Supreme Court of Iowa.

Nov. 12, 1957.

A. Fred Berger and Robert J. Shaw, Davenport, for appellant.

Walter A. Newport, Jr. and Donald A. Wine, Davenport, for appellee.

THOMPSON, Justice.

On September 26, 1956, at approximately 11:00 a. m., the trial court submitted to the jury plaintiff's suit for damages for personal injuries alleged to have been sustained in a collision between a pick-up truck in which he was riding and an automobile owned and driven by the defendant. The jury then retired to deliberate upon its verdict. The trial judge was not a resident of Scott County, and wished to leave immediately. A sealed verdict having been decided upon, the court directed the bailiff in charge of the jury to dismiss the jurors if they had not agreed by 10:00 p. m.

About 10:10 p. m. the bailiff called one of plaintiff's counsel and advised him of the order to dismiss the jury. Counsel immediately went to the court house, where he found one of defendant's attorneys and the bailiff. Plaintiff's attorney then told the bailiff that in view of the length of time the trial had consumed he thought it would be better to give the jury some additional time. Apparently defendant's counsel made no objection. However, the bailiff said he must obey the order of the court. Counsel then said 'Do your duty'. The bailiff did, however, advise the foreman of the jury that he was, in the words of the foreman of the jury as shown in the latter's affidavit, 'empowered to dismiss the jury' if they had not reached a verdict by 10:00 p. m. The foreman in effect asked for additional time. The bailiff thereupon called Judge Charles G. Rehling, at that time another judge of the Seventh Judicial District, who resided in Davenport, and was by him instructed to permit the jury to deliberate until 12:00 o'clock before dismissing them. Whether this was communicated to the jury does not appear; but at about 10:55 p. m. the jury returned its sealed verdict, which was for the defendant. A motion for new trial was made by the plaintiff, and granted by the court upon the sole ground that 'The Court cannot help but feel that the action of the bailiff hastened the jury in their deliberations.' Other grounds of the motion for new trial were denied; attention will be given to them later in this opinion.

I. The trial court in its ruling said: 'The effect of this procedure (the bailiff advising the jury of the order to dismiss) in the eyes of the Court was tantamount to the Court instructing the jury that they had already devoted too much time to their consideration of a proper verdict and that they should have been discharged a matter of some twenty minutes prior to being so notified and was an improper influence to exercise upon the jury.

'The Court knows as a matter of fact that this was the first case that this jury had had occasion to serve upon, that they were, therefore, unacquainted with the ordinary procedure in jury trials and that they undoubtedly interpreted the action of the bailiff as an indication of a rule they must arrive at a decision promptly, or else.

'* * * His (the Court's) complaint is addressed to the fact that the proceedings unduly hastened the jury in arriving at their verdict and amounted to the giving of a verbal instruction to them in violation of law.'

It is apparent the question before us at this point is whether the court was within its fair discretion in granting a new trial for the reasons stated. 'Abuse of discretion' in effect means no discretion to do what was done. It is not a term of opprobrium, but only of error in arriving at the conclusions thought to sustain the ruling made. It is thoroughly settled that the trial court has a large discretion in granting motions for new trial. But this is not unlimited. It is a legal discretion, and can be exercised only for sound judicial reasons. Sparks v. Long, 234 Iowa 21, 23, 11 N.W.2d 716, 718; Eller v. Paul Revere Insurance Company, 230 Iowa 1255, 1260, 300 N.W. 535; Henderson v. Edwards, 191 Iowa 871, 183 N.W. 583, 16 A.L.R. 1090. We have not hesitated to reverse grants of new trials when the trial court's order was not founded upon sound principles and reasoning. The discretion exercised must be based upon the record. Copeland v. Junkin, 198 Iowa 530, 534, 199 N.W. 363, 364. Verdicts should not be set aside lightly; the court, in proclaiming the basis for the grant of a new trial, must be sure that it shows a sufficient ground to support its exercise of discretion. A litigant is, as we have said, entitled to a fair trial, but to only one fair trial. Sparks v. Long, supra, at page 23 of 234 Iowa, at page 718 of 11 N.W.2d 716.

II. Our examination must be to discover whether the reason given by the able trial court is judicially logical and adequate to support the ruling made, within the bounds of a fair discretion. We are constrained to conclude that it is not.

Of course, the court's statement that the bailiff's communication to the jury amounted to an oral instruction can be given no weight. Nor can there be said to have been any misconduct of the bailiff or of the jury in any real sense. The bailiff did nothing more than to advise the jury he was empowered to dismiss it at ten p. m. if a verdict had not been reached; and in so doing he was carrying out the express order of the court. It is also of some significance to note, as shown by the affidavit of William F. Iten, the jury foreman, that after receiving the word from the bailiff as to dismissal, he told the other jurors that while it was important that a verdict be reached, 'that should any one feel that they were compromising a principle or would be unable to sleep with their conscience, they should not change their vote.'

Cases in which, either in verdict-urging instructions or in verbal admonitions or statements made directly by the court to the jury or communicated through a bailiff, coercion or alleged coercion of the jury has been considered, are numerous. But in these, almost without exception, as related to time, the claimed pressure consisted of threats or implications that the jury would be kept together for a considerable period if a verdict was not sooner reached. In some of them, allusions were made to the inconveniences the jurors would suffer while being detained; in some, they were told of the expense to the county of another trial; some contain expressions, veiled or otherwise, of the court's opinion of what they should do. Cases in which the exact situation we have here appeared are apparently not to be found; at least neither of the litigants has given us any citation which we deem squarely in point, nor have we found any. There are several, however, which approach the one in the case at bar, particularly in the reasoning adopted upon more or less closely similar facts.

In Hopkins v. Sawyer, 84 Me. 321, 24 A. 872, the court instructed the bailiff to permit the jury to separate if they had not agreed upon a verdict by 1 a. m. When the jurors were so advised, they replied that they wished to agree. Between 2 and 3 a. m. they reached a verdict. The Maine Supreme Court found no error. In Leonard v. Hume, 5 Cal.App.2d 41, 41 P.2d 965, 966, after the jury had deliberated for some hours, at about 9:45 p. m. the bailiff advised the jurors that he must give the hotel thirty minutes notice whether they would be sent there for the night, and said he would give them fifteen minutes to agree upon a verdict. Presumably he meant that he would wait that long before notifying the hotel. They reached a verdict within the prescribed time. The California Appellate Court gave a claim of error based upon these facts scant consideration, saying: 'If true, this did not constitute undue influence by the bailiff.'

Kahan v. Pure Oil Company, 186 Okl. 493, 98 P.2d 894, 895 dealt with a situation in which the jury, after several hours' deliberation, reported to the court that it could not agree. The court told the jurors it wished them to deliberate longer, 'at least until twelve o'clock'; also saying that it did not wish any man to compromise his honest convictions (as the foreman of the jury did in the instant case.) The jury returned a verdict in about thirty minutes. No error was found. In Brady v. St. Louis Public Service Company, 361 Mo. 148, 233 S.W.2d 841, it appeared that about 4:40 p. m. the court advised the officer in charge of the jury to ascertain if it would be ready to report in ten or fifteen minutes. Within the prescribed time the jury reported its verdict. The Missouri Supreme Court found no reversible error in the trial court's holding that the verdict was not coerced.

In Alcorn v. Cudahy Packing Company, 125 Kan. 493, 264 P. 741, 742, the jurors having deliberated from Friday afternoon until 11:30 Saturday morning, the court advised them that if they could reach a verdict by 1 or 1:30 p. m. it would be there to receive it; otherwise at 1:30 it would instruct them how much longer to continue their deliberations. The Kansas Supreme Court found no coercion.

In our own case of State v. Peirce, 178 Iowa 417, 424, 159 N.W. 1050, 1054, cited and relied upon by plaintiff, we said of verdict-urging instructions that they 'are erroneous if: (1) Their language indicates an intention to coerce into an agreement, or (2) suggests that the jury would be kept together until it agreed.' In Armstrong v. James & Company, 155 Iowa 562, 572, 136 N.W. 686, 690, we said: 'As already indicated, the instruction complained of did not of itself hasten the verdict. It did not come until the additional instruction was given, and the record shows that the court was about to discharge the jury when the foreman sent word that, if they were given a little more time, he thought they could agree. (Italics supplied.) After waiting an hour and a half, they did agree and...