Litz v. Harman

• Decision Date: 20 September 1928
• Parties: LITZ. v. HARMAN.
• Court: Virginia Supreme Court

144 S.E. 477

LITZ.

v.HARMAN.

Supreme Court of Appeals of Virginia.

Sept. 20, 1928.

Error to Circuit Court, Tazewell County.

Action by Edna S. Harman against A. Z. Litz. Judgment for plaintiff, and defendant brings error. Affirmed.

George C. Peery, of Tazewell, and Sinnott, May & Leaman, of Richmond, for plaintiff in error.

Wm. H. Werth, of Tazewell, for defendant in error.

PRENTIS, C. J. Edna S. Harman, plaintiff in the trial court, was struck while walking on the highway and seriously injured by an automobile owned by A. Z. Litz, but then operated by his son, who at the time of the occurrence was just under 21 years of age. There were two jury trials. Upon the first trial the jury returned a verdict for the defendant, which the court set aside, and then upon the second trial there was a verdict forthe plaintiff, of which the defendant, Litz is here complaining.

1. Referring to the first trial: There is a single assignment of error, and that is to the action of the court in setting aside the verdict and in refusing to enter final judgment thereon for the defendant.

The court at first refused to set aside the verdict upon the ground relied on, i. e., that it was contrary to the law and the evidence, but after the order had been entered the plaintiff renewed her motion and assigned as another ground therefor, that during the trial one of the jurors had gone to the place of the accident for the purpose of making an inspection of the premises and taking a view of the scene, and that his report thereof to the other jurors improperly influenced and induced the verdict for the defendant. In support of this motion the affidavits of O. P. Harman, who was a son of the plaintiff, and Sam P. Hoover, one of the jurors, were filed. The defendant objected to the filing of these affidavits, but his objections were overruled, and he excepted, and he then filed counter affidavits of three jurors, R. E. French, E. T. Scott, and E. R. Garst, the latter being the juror who had so viewed the premises. Upon a consideration of these affidavits, the trial court sustained the motion, set aside the verdict, and directed a new trial. This action of the trial court is the only error assigned affecting the first trial.

These affidavits, omitting the formal parts, follow:

The affidavit of Harman, the plaintiff's son, states that he testified as a witness and attended the trial; that the evidence introduced by the parties to the case was concluded in the afternoon of Saturday, May ——, 1927, and that the jury was then adjourned until Monday following to hear the instructions of the court and arguments of counsel, and that the facts stated below were not known to plaintiff or her counsel until June 4th; that, during the intervening Sunday, E. R. Garst, one of the jurymen sitting in the case, went to the place of the accident involved, for the purpose of making an inspection and taking a view of the scene and of the positions of witnesses who had testified in the case, and such other facts as he could thereby ascertain and deemed material by him, and that upon Garst's arrival at the place of accident he did then and there make said inspection; that after the jury retired to consider of their verdict in said case on Monday, and in the jury room while they were considering the same, and while the jury were nearly equally divided in opinion as between a verdict for plaintiff or defendant, said E. R. Garst, without ever having otherwise disclosed said facts, told the other members of the jury of his visit to the place of the accident on Sunday, and of the view and inspection he had made there, and of the personal knowledge he had thus obtained of facts involved in controversy in the case and deemed material by him; and that said Garst had then argued and contended with other members of the jury that, under the evidence he had thus acquired and disclosed, there ought to be a verdict for defendant; and that the verdict returned was largely influenced and induced by said statements of said Garst.

The juror, Sam P. Hoover, made this affidavit:

"(a) That he was one of the jurymen empaneled and sworn in the circuit court of Tazewell county at the May Term, 1927, to hear and try the law case of Edna S. Harman v. A. Z. Litz; that the case was submitted to the jury on Monday, May —, and the jury retired to its room to consider of its verdict; that after some time it was ascertained that the jury could not agree upon a verdict as between plaintiff and defendant in said case, and, being at the time of the opinion among themselves that agreement was probably hopeless, it was decided to report a disagreement to the court, and the jury returned into court and so reported; that the trial judge admonished the jury of the desirability of arriving at a verdict, if reasonably possible without the surrender of fixed conscientious convictions, and the jury then returned to make another effort to agree.

"(b) That upon returning to its room one of the members of the jury, to wit, E. R. Garst, informed the jury that during Sunday preceding and intervening during the trial, and while he was a juryman in the case, he had gone to the scene of the accident involved, and viewed the ground and various locations as he understood the locations involved to be fixed by the evidence before him, and with special relation to the positions of witnesses as he had understood them to be fixed by the evidence; that said Garst also informed the jury of the conclusions arrived at by him from said inspection of the ground, and urged upon the other members of the jury the facts he had thus claimed to ascertain, and also the conclusions he had come to from those facts, as to the verdict that should be returned by the jury in the case.

"That it was after this that the jury finally agreed."

The substance of the counter affidavits introduced by the defendant is:

"R. E. French, after being duly sworn, deposes and says:

"I was a member of the jury in the trial of the case of Edna S. Harman v. A. Z. Litz in Tazewell circuit court.

"Upon the first vote by the jury, two of us, S. P. Hoover and myself, voted for giving some damage, and the other five members of the jury voted in favor of defendant and against giving any damage. I was in favor of allowing small damage, of about $400 or $500. We reported our disagreement to the court, and the court sent us back to further consider the case. We then went over the map filed by R. E. Meade and the evidence that had been introduced before us and agreed upon a verdict in favor of the defendant.

"One of the jurors, I think Mr. Garst, spoke of driving down to the place where the accidentoccurred, but I do not remember what he said about his trip there. I do say that whatever statement he may have made about going there on Sunday did not in any way influence me, or influence my verdict in the case. I gave my verdict for the defendant after full consideration of the evidence, and only the evidence, that was introduced before us in court.

"I reached the conclusion from the evidence that Mrs. Harman must have started across the road just before the accident and was struck as she went across."

"E. T. Scott, after being duly sworn, deposes and says:

"I was a member of the jury in the trial of the case of Edna S. Harman v. A. Z. Litz in the circuit court of Tazewell county, Virginia. On the first vote on the case by the jury, five voted for the defendant, and against giving any damage, and two of the jury, S. P. Hoover and R. E. French, voted for giving small damage—he told me something like $400 or $500. We reported our disagreement to the court, and the court sent us back to the jury room. After going back to the jury room the jury went over and discussed the map introduced in evidence by R. E. Meade, and Mr. Hoover and Mr. French then agreed with the other five members of the jury upon a verdict in favor of the defendant.

"I do not member of Mr. E. L. Garst making any statement in the jury room about going down to the place of the accident on Sunday.

"If he did make any such statement, it did not in anyway influence me, or influence "my verdict in the case."

"E. R. Garst, after being duly sworn, deposes and says:

"I was a member of the jury in the trial of the case of Edna S. Harman v. A. Z. Lazt, at the May term, 1927, of the circuit court of Tazewell county. I live at North Tazewell, Va., and am employed by Tazewell Motor Company, whose place of business is in the town of Tazewell, Va. The introduction of evidence in the said case was completed on Saturday, and the case was adjourned over until the following Monday. On the afternoon of the Sunday which intervened, I, in company with my sister-in-law, Miss Rose Poteet, took an automobile drive down to or near Pounding Mill, Va., returning that same afternoon. The road traveled was along that portion of the state highway where the accident involved in said case occurred. When we passed over the detour, and got back into the state highway just west of the barricade, we traveled a short distance to the west and stopped our car at a point on the right side of the road going west directly in front of and opposite to the small residence situate on the left side of the road going west, the location of said residence being shown on the map filed with the evidence of R, E. Meade, and indicated by the rectangle with the letters 'Res' written therein; said point where we stopped being 75 feet west of the barricade, according to said map. Neither of us got out of the car at this place where we stopped. We remained in the car at this point long enough for me to observe more than one car moving along the highway to the west, and also to observe more than one car coming from the west along the said highway. I observed that a car coming to the east was out of sight for some hundred feet just west of the place of the accident, owing to a sag in the road, and that it did not come into view until it reached a point east of...