Kredit v. Ryan

• Decision Date: 02 January 1942
• Docket Number: 8437
• Citation: 1 N.W.2d 813,68 S.D. 274
• Parties: DOROTHY KREDIT, Appellant, v. JOE E. RYAN, et al, Respondents
• Court: South Dakota Supreme Court

68 SD 274, 1 NW2d 813 (1942)

DOROTHY KREDIT, Appellant v JOE E. RYAN, et al,

Respondents

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. L. L. Fleeger, Judge.

#8437--Affirmed.

John Carl Mundt, Sioux Falls, SD

Attorney for Appellant.

Bailey, Voorhees, Woods & Bottum, Sioux Falls, SD

C. H. McKay, Joe W. Flood, Salem, SD

Attorneys for Respondents.

Opinion filed January 2, 1942; Rehearing Denied March 11, 1942

WARREN, J.

The plaintiff brought an action to recover damages for false imprisonment. In her complaint she also included claims for damages based on other matters. At the beginning of the trial, the claims in the complaint were narrowed down to false imprisonment. Plaintiff, who was a practical nurse, brought suit against the defendants, R. W. Reid, a rural route mail carrier, Noah Ortman, one of the proprietors of a clinic, Ed Klinkel, manager of the hotel connected with the Canistota clinic (these three defendants lived at Canistota, South Dakota) Joe E. Ryan, as sheriff of McCook County, South Dakota, and the American Surety Company, which was surety on the sheriff’s bond.

It would appear that plaintiff and defendant Reid had had an altercation in regard to the possession of a room in a boarding house in Canistota, South Dakota. Reid and his eight year old son were living at the boarding house. Reid feared plaintiff would injure his small boy, who was obliged to remain alone while Reid was away on the mail route, on account of certain threats made by plaintiff which took place during an altercation in which he says that she referred to Reid’s occupancy of the room saying: “Don’t think you are going to get away with it; I will get even with you.” The plaintiff denies that she was guilty of ever making a threat against the defendant Reid. An attorney in Canistota, South Dakota, was consulted who advised him as to his rights to institute proceedings to require plaintiff to give security to keep the peace. In company with this attorney, he narrated the facts to a Justice of the Peace concerning the trouble and altercation with the plaintiff. The attorney, it would seem, prepared the complaint which was signed by Reid. A warrant was signed and issued by the Justice of the Peace and placed in the hands of Sheriff Ryan who afterwards made the arrest. The record contains evidence to the effect that she resisted arrest; that her conversation, behavior and action seemed strange to the sheriff to the extent that he thought she was mentally unbalanced or insane. Plaintiff was placed in the women’s ward of the McCook County jail where she remained until the following afternoon. It would seem that the arrest was made in the early evening and that the Justice of the Peace was out of town and unavailable.

The record contains evidence to the effect that plaintiff repeatedly told the defendant sheriff that she did not want to be taken into court or before the Justice of the Peace. After arriving at Salem, South Dakota, the defendant sheriff at the plaintiff’s request put in a telephone call to her brothers in order that she might consult with them about her trouble. This is all denied by the plaintiff. Her brothers arrived the following day. Plaintiff repeated her request that she be released and not taken before the Justice of the Peace. After repeated requests of plaintiff and her brothers, who agreed to care for her, the sheriff released her and took no further proceedings under the complaint and the warrant issued by the Justice of the Peace.

The court directed verdicts in favor of the three defendants, R. W. Reid, Noah Ortman and Ed Klinkel. Upon trial of the other two defendants, the jury returned a verdict finding all the issues in favor of the defendants, Joe E. Ryan and American Surety Company of New York.

A motion for new trial was made and overruled by the court. Plaintiff has appealed from the judgment and order overruling a motion for a new trial.

Appellant contends that the jury being guilty of misconduct, a fair and due consideration of the case was prevented by reason of certain statements made by Juror Charles Erickson, who, it is claimed, disregarded the injunction of the court to not talk to anyone about the case until it had been finally submitted. He nevertheless made a statement, it is contended in an affidavit of Juror Hugo Mayer, to the effect that Ryan had to take Dorothy Kredit by force and that he was doing his duty when he put the “come along” on her wrist because she would not come with him. Juror Mayer, in an affidavit, states that after the case was finally submitted to the jury, Juror Erickson stated in effect: “That he knew all about Dorothy Kredit; that his wife had told him Miss Kredit was a ‘cat'; that she was just after the money and that he wouldn’t give her anything.”

Said Juror Mayer further stated that certain statements influenced his verdict and he thinks that certain statements influenced other jurors in the verdict. There are affidavits by five other jurors, each of said affidavits contains a statement to the effect that Charles Erickson, at the time of deliberating in the jury room, stated to them the portion of Juror Mayer’s affidavit last above quoted.

We need not review the authorities of early Dakota territorial days to the present time to the effect that affidavits of jurors cannot be used to impeach their verdict for the reason that appellant in her brief states that she is not unmindful of that general rule of law. It is urged that if this is an exclusion ruling, then how may the fact that jurors received important evidence out of court be brought to the attention of the court. Juror Erickson was permitted to sit on the jury after he had answered the questions asked him concerning his knowledge of the appellant to which he had replied that he did not know her and that he had not heard anything about her case; that no one had talked to him, and that, if anybody did talk to him about the case, he would not be influenced or governed by it; that he was not prejudiced and would act fairly and impartially. Appellant, having discovered that this juror had made certain remarks in the jury room which she claims amounted to giving evidence before the jury, charges that it does not fall within the rules announced by this court, in a long unbroken line of authorities, that affidavits of jurors can not be used to impeach their verdict. In support thereof, authorities have been cited among which is Slater v. United Traction Co., 172 App. Div. 404, 157 NYS 909. An examination of this case shows that it is easily distinguishable from the facts which we are dealing with. Space forbids making a lengthy analysis.

In Hansen v. Muller, 65 SD 546, 276 NW 150, this court sustained the lower court in granting a new trial upon certain nonjurors’ affidavits setting out specific acts of misconduct presented to the trial court on a motion for new trial. The jurors involved filed counter affidavits. In the instant case, we are dealing with affidavits given by jurors. in the Hansen v. Muller, supra, this court dealt with affidavits given by outsiders, not jurors, who related facts pertaining to the trial while the jurors made affidavits in substance denying that they had made certain statements to the outsiders. Therefore, a far different question was decided in that case than we are asked to decide in the instant case. We are asked to receive and consider the affidavits of jurors, which in effect amounts to deciding that jurors can, by their affidavits, impeach their verdict. This would be contrary to a long-established line of authorities by this court and other courts. State v. Corner et al. 58 SD 579, 237 NW 912 and Saunders v. Farmers’ & Merchants’ National Bank of Milbank et al., 61 SD 261, 248 NW 250.

In Carpenter v. Union Baking Co., 67 SD 151, 290 NW 322, 323, this court considered the failure of a juror to make known his acquaintance with the plaintiff and which the appellant assigned as misconduct on the part of the juror. SDC 33.1605(2) was considered by the court and the court’s holding seems determinative upon at least the statement of Juror Carlson before he was sworn to serve as a juror. The following language seems compelling, “that the verdict will not be set aside for objection to jurors on grounds which existed before they were sworn unless it is made to appear that by reason of the existence of such grounds the party objecting has suffered wrong or injustice.” See cases following quotation.

In Edward Thompson Co. v. Gunderson, 10 SD 42, 71 NW 764, this court determined the alleged misconduct of jurors which consisted in the temporary separation of two jurors from the others. The affidavits of the two jurors were read in support of the motion for a new trial. The court, in passing upon the admissibility of the jurors’ affidavits, said they should not have been received as it was a 44 settled law of this state that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of mistake, irregularity, or misconduct of the jury, or some one or more of them, except in the cases expressly authorized by the legislature.” (Emphasis ours.) Our legislature has not, up to the present moment, expressly authorized the receiving of jurors’ affidavits by courts except SDC 33.1605(2), and as there is nothing in the facts in the case before us that could possibly be construed to be governed by subdivision 2, we must adhere to our former holdings in an unbroken line ofauthorities that affidavits of jurors may not be used to impeach and overthrow their verdicts. The Supreme Court of California in Polhemus v. Heiman, 50 Cal. 438, 441, in stating exceptions to the rule that affidavits of jurymen cannot be received to impeach or defeat their verdict, employed certain language indicating that the position of this court was in harmony with the California court in what we said in the Gunderson...