Keyes v. Amundson, 10396

• Decision Date: 28 December 1983
• Docket Number: No. 10396,10396
• Citation: 343 N.W.2d 78
• Court: North Dakota Supreme Court
• Parties: Bradley KEYES, Plaintiff and Appellant, v. Susan AMUNDSON, Robert Amundson, Craig Stoner, G & J Hotshot Service, Inc., and Getter Trucking, Inc., Defendants and Appellees. Civ.

Page 78

343 N.W.2d 78

Bradley KEYES, Plaintiff and Appellant, v. Susan AMUNDSON, Robert Amundson, Craig Stoner, G & J Hotshot

Service, Inc., and Getter Trucking, Inc.,

Defendants and Appellees.

Civ. No. 10396.

Supreme Court of North Dakota.

Dec. 28, 1983.

Greenwood, Greenwood & Greenwood, Dickinson, for plaintiff and appellant; argued by Dann Greenwood, Dickinson.

Bjella, Neff, Rathert, Wahl & Eiken, Williston, for defendants and appellees Amundsons; argued by Paul W. Jacobson, Williston.

Letnes, Marshall, Fiedler & Clapp, Grand Forks, for defendants and appellees Stoner and G & J Hotshot Service, Inc.; argued by Jay H. Fiedler, Grand Forks.

McIntee & Whisenand, Williston, for defendant and appellee Getter Trucking, Inc.; argued by Frederick E. Whisenand, Williston.

ERICKSTAD, Chief Justice.

Bradley Keyes appeals from the judgment, the order denying his motion for judgment notwithstanding the verdict, and the order denying his motion for a new trial. We vacate the judgment, reverse the order denying a new trial, and remand for a new trial.

This action arose out of a motorcycle-automobile accident which occurred on August 4, 1981, in Williston, North Dakota. Bradley Keyes [Keyes] was riding his motorcycle in a westerly direction on 26th Street. Susan Amundson [Amundson] pulled out from a stop sign into the path of the oncoming motorcycle, and the collision ensued. The vision of both drivers was obstructed by a semi-trailer truck which had been parked on 26th Street near the intersection by Craig Stoner [Stoner]. Keyes alleged that at the time of the accident Stoner was acting as an agent for G & J Hotshot Service, Inc. [G & J] and Getter Trucking, Inc. [Getter].

Keyes was seriously injured in the accident. His injuries included permanent paralysis of his right arm, loss of two toes, a broken jaw, and numerous lacerations which have left permanent scarring.

Keyes commenced this action shortly after the accident. The case was tried to a jury, and the jury returned its verdict apportioning negligence in the following amounts: Keyes--40%; Amundson--40%; and Stoner--20%. As a result, the trial court concluded that under our comparative negligence statute, Sec. 9-10-07, N.D.C.C., Keyes was not entitled to any recovery and the action was dismissed. ¹

Keyes has raised a number of issues on appeal. We find it necessary to discuss only two: (1) did the trial court err in allowing the jurors to separate over the weekend after the case had been submitted to them, and (2) was Keyes prejudiced by unauthorized views of the accident scene by members of the jury. ² To a great extent these issues are interrelated, because it was the improper separation of the jurors which afforded them an opportunity to view the accident scene after the case had been submitted to them.

A motion for a new trial is addressed to the sound discretion of the trial court, and its action on the motion will not be disturbed on appeal in the absence of an abuse of discretion. Wilson v. General Motors Corp., 311 N.W.2d 10, 15 (N.D.1981); Johnson v. Monsanto Co., 303 N.W.2d 86, 91-92 (N.D.1981). It is within this context that we consider the issues raised by Keyes.

A brief factual background of the events leading to the jurors' misconduct is necessary. The jury retired for deliberations late in the afternoon on Friday, November 12, 1982. Over the objection of Keyes' counsel, the court dismissed the jurors and allowed them to return to their homes for the weekend at approximately 12:45 a.m., Saturday, November 13. The jurors were instructed to return to continue their deliberations at 8:00 a.m. on Monday, November 15.

Keyes contends that Sec. 28-14-18, N.D.C.C., prohibits a weekend separation of the jurors after the case has been submitted to them. Section 28-14-18, N.D.C.C., provides, in pertinent part:

"28-14-18. Conduct of jurors in retirement. When the case finally is submitted to the jurors, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place under charge of an officer, until they agree upon a verdict, are temporarily dismissed by the court, or are permanently discharged by the court.... Where the jurors have not agreed upon a verdict by twelve midnight of any day of deliberations, the trial judge may temporarily dismiss the jurors from twelve midnight to eight a.m. that day when the jurors shall resume deliberations.... In all cases where the jurors are dismissed or separated, as above stated, the trial judge shall admonish the members thereof that they must not in any manner discuss the case with anyone, nor permit anyone to discuss it with them, while they are so dismissed or separated, and that they must discuss and consider the case only in the room when all members of the jury are present."

The defendants argue that the statute permits the court, in its discretion, to order a weekend separation. We do not agree. The statute clearly gives the court authority to "temporarily dismiss" the jurors if they have not reached a verdict by twelve midnight of any day of deliberations; however, the duration of such a temporary dismissal is not unlimited. The court may dismiss the jurors "from twelve midnight to eight a.m. that day." [Emphasis added.] We read the statute to permit, at a maximum, an eight hour separation; the jury must reconvene for further deliberations at eight a.m. the next morning. The court does not have the discretion to allow a weekend separation, or any other separation not specifically authorized by the statute. The law with regard to jury conduct must be strictly followed in order to keep the conduct of jurors and jury verdicts above suspicion. Fischer v. Knapp, 332 N.W.2d 76, 79 (N.D.1983); Demaray v. Ridl, 249 N.W.2d 219, 225 (N.D.1976). Separation of the jurors after they have begun deliberations should be minimized to lessen the possibility of juror misconduct, outside influence, and receipt of extraneous prejudicial information.

Furthermore, the record does not indicate that the court admonished the jury before allowing them to separate for the weekend. Section 28-14-18, N.D.C.C., provides that in all cases where the jurors are temporarily dismissed the trial judge is required to admonish the jurors that they are not to discuss the case with anyone during the dismissal, and that they are to consider the case only in the jury room with all members of the jury present. We conclude that the trial court erred in allowing the jurors to separate over the weekend and in failing to admonish them before dismissal.

In order to obtain a new trial, however, Keyes must also show that he has been prejudiced in some way by the errors. Mere reliance upon technical violations of the statute without a showing of prejudice is insufficient. See State v. Bergeron, 340 N.W.2d 51, 59 (N.D.1983).

We conclude that Keyes has established prejudice in this case by proof of juror misconduct during the weekend separation which resulted in extraneous prejudicial information reaching the jury. When the jury reconvened on Monday morning, at least two (and possibly three) jurors informed the rest of the jurors that they had investigated the scene of the accident over the weekend. One of the jurors, Patricia Larson, related the incident in a post-trial affidavit:

"On Monday morning Larry Lynne said that he went to the scene of the accident so that he could report what he found for those who hadn't had time. Mrs. Devers also said she went to the scene. I believe at least one other also said they went. Among other things, those persons said that Susan Amundson couldn't have seen even if the truck was not there because there were big garbage cans there now."

Larry Lynne, the foreman of the jury, submitted a responsive affidavit in which he generally corroborated Patricia Larson's recollection of the incident:

"On Monday morning, November 15, as we resumed deliberations, I stated to the jury that I had driven both ways through the intersection that was the scene of the accident, and that I didn't know how many others had had the opportunity to do so. I stated that, in my opinion, it would have been difficult for Mrs. Amundson to see oncoming traffic whether the truck would have been there or not because there were trees and garbage cans obstructing the view. I also indicated that I realize conditions would have been different at the time of the accident because there would have been more foilage [sic ] in the summer which would have further obstructed vision."

Keyes raised this instance of juror misconduct in his motion for a new trial. In its written memorandum denying the motion, the court stated:

"The plaintiff also complains of conduct of the jury. The Court interprets Rule 59(b)(2) to mean that only when the jury has arrived at a verdict by chance can Affidavits be used to prove the misconduct. Regardless of that, the Court has considered the Affidavits on either side and cannot agree that the verdict was arrived at by chance or the jurors committed any prejudicial acts affecting the verdict."

Thus, the court held that the affidavits were inadmissible, but went on to conclude that, even if they were admissible, Keyes was not prejudiced by the jury misconduct.

We will first address whether Rule 59(b)(2) prohibits the use of juror affidavits to prove juror misconduct other than a chance verdict. The trial court apparently considered only Rule 59(b)(2) in holding the affidavits inadmissible. However, we made it clear in Kerzmann v. Rohweder, 321 N.W.2d 84, 90-91 (N.D.1982), that the resolution of disputes over the use of juror affidavits in support of a motion for new trial requires consideration of Rule 59(b)(2) and Rule 606(b), N.D.R.Ev.

Rule 59(b) sets out the causes for new trial, and Subsection (2) provides:

" (b) Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of a party aggrieved for...