Kearns v. Hall

• Decision Date: 05 March 1956
• Docket Number: No. 4472,4472
• Citation: 91 S.E.2d 648,197 Va. 736
• Court: Virginia Supreme Court
• Parties: THEODORE W. KEARNS v. GLADYS C. HALL. Record

Page 648

91 S.E.2d 648

197 Va. 736

THEODORE W. KEARNS v. GLADYS C. HALL.

Record No. 4472.

Supreme Court of Appeals of Virginia

March 5, 1956.

James H. Simmonds and Roy A. Swayze, for the plaintiff in error.

John W. Jackson and Irving G. McCann, for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This action was instituted by Mrs. Gladys C. Hall against Theodore W. Kearns, an infant, and Robert M. Kearns to recover damages for injuries received in a collision between an automobile operated by Mrs. Hall and another operated by Theodore W. Kearns, and owned by Robert M. Kearns, his father. Grounds of defense were filed by both defendants, and for the infant by his duly appointed guardian ad litem.

Trial was had on April 22 and 23, 1954. At the conclusion of plaintiff's testimony, a motion of defendants to strike the evidence was granted as to Robert M. Kearns, without objection, and denied as to the infant. On motion of counsel for Theodore W. Kearns, the jury was sent to the scene of the collision for a view of the surroundings. Code, § 8-216. The request of plaintiff that she be allowed to place her automobile in the position in which it was as she entered the main highway from a lane on the night of the accident was denied, the court expressing the opinion that it did not think such a test should be made. Neither the court nor counsel were present at the view. When the jury returned to the court-room, it was instructed by the court, and after a long deliberation, it returned a verdict in favor of both defendants.

Mrs. Hall moved to set aside the verdict as to Theodore W. Kearns, and for the award of a new trial on the grounds that the verdict was contrary to the law and the evidence, and because members of the jury had been guilty of misconduct at the scene of the accident in making improper tests and experiments. Attached to the motion was an affidavit of Irving G. McCann, one of the attorneys for the plaintiff, in which he set forth, 'on information and belief,' the alleged misconduct of the jury, according to statements which he said he obtained from four of the seven jurors in the case. He asked the court to call the jurors as witnesses.

The motion for a new trial was taken under advisement, and the case ordered to be continued. Subsequently the motion was set to be heard on May 21, 1954. On September 3, 1954, no hearing having been held, the court wrote counsel for the parties the following letter:

'This is to advise that it is my opinion that the verdict in the above styled action should be set aside and a new trial ordered because of the action of the jury taken at a view of the scene of the accident.

'I am constrained to state that I doubt that the action on the part of the jury actually influenced the verdict and, without the view, I would otherwise think that the verdict should stand. However, in attempting to simulate the position of cars and to make time checks at the scene of the accident the jury did things which the court would not have permitted if present and I have no way of stating with authority that these actions may not have had influence on the verdict.

'It is requested that an order be submitted setting aside the verdict and awarding a new trial for the reasons indicated.

'Very truly yours,

ARTHUR W. SINCLAIR.'

On September 10th, the following order was entered:

'ORDERED and ADJUDGED, that the motion to vacate and set aside the verdict of the jury as to the defendant, Theodore W. Kearns, and to grant the plaintiff a new trial be, and the same is hereby granted, to which action of the Court the defendant, Theodore W. Kearns by Counsel excepted, on the grounds stated in the attached memorandum which is hereby ORDERED filed and made a part of the record.'

On December 2, 1954, a new trial was had, and the jury therein returned a verdict for the plaintiff against Theodore W. Kearns in the sum of $12,500. The defendant moved that this verdict be set aside and a new trial granted for error in the admission of certain testimony, and in the granting of certain instructions.

The court overruled defendant's motion and entered judgment in accordance with the verdict of the second jury. Defendant duly excepted.

On March 4th, 1955, the trial judge filed as a part of the record the following statement of the facts and incidents of the first trial:

'1. On April 23, 1954, at the conclusion of the evidence and before the Jury was taken to the scene of the accident for a view, counsel for the Plaintiff, in Chambers, requested the Court to permit the Plaintiff to place an automobile at the intersection of the private road and Route 236 in the same position as her car was stopped in this intersection immediately prior to her entering Route 236 just before the collision. The Court refused to allow the Plaintiff to do so. The record does not reflect the original request of counsel but does show the exception taken by Plaintiff's counsel to the Court's action in denying the motion, such exception being shown on Pages 203 and 204 of the stenographic transcript of the proceedings on April 22 and April 23, 1954. Pursuant to agreement between Court and counsel for all parties, the Jury was taken to the scene of the accident by one of the Deputy Clerks of the Court and a Deputy Sheriff during which time the Court and counsel for the parties remained in Chambers for the purpose of considering instructions.

'2. On May 8, 1954, Mr. Irving G. McCann, one of counsel for the Plaintiff informed the Court that one of the Jurors, in a conversation with Mr. McCann concerning the incidents of the view by the Jury of the scene of the accident, had inquired whether he would be permitted to discuss the case with Mr. McCann. Mr. McCann so informed the Court, in order that he could in turn inform the Jurors whom he planned to see that day for the purpose of obtaining statements from them. Thereupon, the Court informed Mr. McCann that he should tell any of the Jurors whom he approached that they did not have to answer any questions asked by him, and the Court further informed Mr. McCann that a Juror had called the Court and advised that Mr. McCann had interrogated him concerning the conduct of the Jury upon the visit to the scene.

'3. In support of his motion to vacate and set aside the verdict of the Jury and for a new trial, Mr. McCann filed an affidavit on information and belief, alleging in substance that the Jury made unauthorized tests, measurements and demonstrations when it viewed the scene of the accident and, in said affidavit, requested that the Court call the aforesaid Jurors as witnesses to check the accuracy of the affidavit.

'4. Thereafter the Court, without notice to, knowledge or consent of counsel for the parties, or the duly appointed guardian ad litem, interrogated the said Deputy Clerk and Deputy Sheriff who were in charge of the Jury when the view was made, such interrogation not being under oath, and found that the Jury had done the unauthorized things as alleged in the affidavit. Having so found, the Court issued its memorandum opinion of September 3, 1954, and its order setting aside the verdict and awarding the Plaintiff a new trial.'

Theodore W. Kearns thereafter applied for and obtained this writ of error, contending, first, that the trial court erred in setting aside the verdict of April 23, 1954, and awarding a new trial; and, second, that in the second trial, it erred in denying his motion to withdraw a juror and declare a mistrial because of the admission of improper evidence. He asks that the order of the court granting a new trial be reversed, that the verdict returned on April 23, 1954, be reinstated and final judgment rendered in his favor; but if this be not done, that the case be remanded for a new trial because of prejudicial error in the admission of evidence in the second trial.

In view of the conclusion we have reached, it is not necessary for us to consider the facts in evidence relating to the question of liability of the defendant for the automobile collision involved. Nor do we reach the questions relating to the validity of the second trial.

Referring to the first trial, defendant insists that there was no competent legal evidence before the court in support of the motion to set aside the verdict on the ground of misconduct of the jury, and that the misconduct, if true, did not justify the court in granting the motion. Plaintiff, on the other hand, contends that defendant waived any right to complain of any 'procedural inadequacies of the trial court's finding of jury misconduct,' in that he offered no testimony refuting the McCann affidavit nor any denial of it.

It is settled in Virginia that a motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court. Whether a new trial should be granted depends upon the circumstances of the particular case. 'Much should be left to the trial judge, and unless he abuses his discretion, his judgment should conclude the matter on appeal.' Litz v. Harman, 151 Va. 363, 375, 144 S.E. 477; 39 Am. Jur., New Trial, § 78, page 91. In Hickerson v. Burner, 186 Va. 66, 72, 41 S.E. (2d) 451, we said: 'We adhere to that view, with the added caution that only slight evidence of influence or prejudice as a result of such misconduct of a juror should be required to warrant the granting of a new trial.'

The object of a view of the grounds at the scene of an accident which is the basis of an action is to enable the jury to apply the testimony disclosed upon the trial, and is not intended to supply evidence but only to explain and clarify it. A jury can not be allowed to become silent witnesses to facts not testified to in open court. Lorillard Co. v. Clay, 127 Va. 734, 743, 104 S.E. 384; Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679; Crockett v. Commonwealth, 187 Va. 687, 47 S.E. (2d) 377; Hinton v. Gallagher, 190 Va. 421, 57...