Maryland Cas. Co. v. Seattle Elec. Co.

• Citation: 134 P. 1097,75 Wash. 430
• Parties: MARYLAND CASUALTY CO. v. SEATTLE ELECTRIC CO.
• Decision Date: 16 September 1913
• Court: United States State Supreme Court of Washington

134 P. 1097

75 Wash. 430

MARYLAND CASUALTY CO. v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

September 16, 1913

Department 2. Appeal from Superior Court, King County; Everett Smith Judge.

Action by the Maryland Casualty Company against the Seattle Electric Company. From an order granting plaintiff a new trial defendant appeals. Reversed and remanded with directions.

Jas. B Howe and A. J. Falknor, both of Seattle, for appellant.

John W Roberts, of Seattle, for respondent.

ELLIS, J.

The plaintiff, as assignee of one Harvey, brought this action to recover damages for injuries to an automobile resulting from its collision with one of the defendant's street cars. The cause was tried, and the jury was instructed and retired for deliberation on the morning of Friday, October 11, 1912. The trial resulted in a verdict for the defendant. A new trial was granted upon the sole ground of reported misconduct of one of the jurors in visiting the scene of the accident during the trial without request either of the court or of the parties. The order granting the new trial, omitting the formal parts, was as follows: 'The motion for a new trial of the plaintiff coming on regularly to be heard in the above-entitled court on the 9th day of November, 1912, and the court have duly considered the same, on account of the reported conduct of one of the jurors visiting the scene of the accident during the trial without request of court or the parties to the suit as indicated and set forth in the stenographic notes, a transcript of which is hereto attached said motion be, and the same is, hereby granted; the motion being denied on all other grounds. The plaintiff excepts to the denial of said motion on all other grounds, and the defendant excepts to the granting of said motion on the ground stated herein. Said exceptions are hereby allowed.'

The stenographic notes to which reference is made in the order, as reproduced in the statement of facts, are as follows:

'At 11:15 a. m., Friday, October 11, 1912, the jury in the above-entitled cause came into open court, and the court said:

'The Court: 'I wish to say to the members of the jury in the case of Maryland Casualty Company against the Seattle Electric Company that in that case, as in all cases, your decision has to be made upon the evidence--upon the evidence as brought before the jury in the courtroom. If the attorneys had desired the jury to view the premises they would have asked permission of the court, or agreed between themselves to take the jury to the place where the accident or scene took place. As long as they did not ask that, the jury are excluded, even if they may have seen the place, so far as possible to do so, from having a picture of that place in their minds. They, on their oath, have agreed that they will form their judgment upon the evidence and testimony as produced and submitted to them in the courtroom, and if there has been any evidence obtained by any juror from the premise itself, that shall be forgotten, and not brought into the decision of the case.' Whereupon the jury returned to the jury room. At 5 p. m., the court said regarding the above case, the following:

'The Court: 'During the morning, the jury called for the bailiff, and the bailiff went in and spoke to the foreman of the jury, and came out and reported to me that the foreman of the jury had stated that during the trial one of the members, one of the jurors, went down on James street and made notes on the situation and had come back to the jury room with that information, and was insisting upon how the accident happened based on her inspection of the street grade, and some of the jurymen were objecting to her argument for that reason, and the foreman of the jury wanted instructions to know whether or not the juror had any right to visit the scene and argue it from that standpoint, and I called the jury in and spoke to the jury as follows:' The court's remarks to the jury were here repeated. 'When it came in, it was a question whether I should have sent them back and closed the door. But it seemed to me that the court should take cognizance of the request, and the court did not intend by this statement, to further instruct them orally, but to give them the warning which the court felt it was necessary to do.'

'Mr. Falknor: 'I think the action of the court was eminently proper.'

'Mr. Roberts: 'It seems that this instruction was delivered by your Honor orally.'

'The Court: 'Yes.'

'Mr. Roberts: 'And in the absence of counsel.'

'The Court: 'I do not know what the significance of the action of the court on the jury was.''

The plaintiff's motion for a new trial was not supported by affidavits of any kind. It was, however, accompanied by a copy of the stenographic notes above quoted. From the order granting a new trial the defendant prosecutes this appeal.

The appellant attacked the order upon the following grounds: (1) That the motion, unsupported by affidavit, was insufficient basis for the order; (2) that the verdict cannot be impeached by statements of jurors; (3) that the claim of misconduct was based upon hearsay; (4) that the misconduct, if any, was without prejudice; (5) that the instruction given by the trial court cured any prejudice which otherwise might have resulted from the alleged misconduct.

1. The appellant contends that the use of affidavits in such a case as this is mandatory; the respondents that it is merely permissive. The statute authorizing the use of affidavits in support of the motion for a new trial (Rem. & Bal. Code, § 401) reads: 'The motion for a new trial shall state the grounds or causes for which a new trial is asked, and if made for any of the causes mentioned in the first, second, third, or fourth subdivision of section 399, the facts upon which it is based may be shown by affidavit.' The language employed, standing alone, seems to import a mere permissive use of affidavits; but, when we examine the four indicated subdivisions of section 399 to which it is applied, the word 'may' must be construed in a mandatory rather than a permissive sense whenever affidavits may be used at all. The four subdivisions of section 399 are as follows: '(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial; (2) misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors; (3) accident or surprise which ordinary prudence could not have guarded against; (4) newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.'

It will be noted that some of the situations contemplated by the first three of the grounds for a new trial might arise upon matters occurring in open court during the progress of the trial and the facts would then appear as a part of the record. In such a case, it is obvious that affidavits presenting such facts would be unnecessary and improper. Other situations contemplated by any one of these four subdivisions might arise out of matter not occurring in open court during the progress of the trial and hence not appearing in the record. In such a case evidence aliunde the record would be not only proper but necessary to any disclosure of the facts relied upon for a new trial. The statute, recognizing this necessity, permits that evidence to be supplied by affidavits; the permissive form of expression being used because evidence aliunde the record itself would not always be necessary. Where such evidence outside of the record is necessary at all this statute authorizes no other means of presenting it than by affidavits. It follows that in such cases the motion for a new trial not only may be supported by affidavit but must be so supported. A thoughtful reading of section 401 in connection with the grounds for a new trial to which it refers is convincing that, where the facts upon which the motion rests do not appear in the record as a part of the trial itself, the discretionary powers of the trial court can only be invoked by presenting such facts by affidavit. Though this court has never before stated the reasons for construing the statutory use of affidavits as mandatory rather than permissive, it has in at least two decisions assumed the presentation of the facts by affidavit essential. Lybarger v. State, 2 Wash. 552, 562, 27 P. 449, 1029; State v. Parker, 25 Wash. 405-415, 65 P. 776.

2. By the second objection, that the verdict cannot be impeached by the statements of jurors, we take it from the argument the appellant means by the affidavit or sworn statement of jurors. This presents a more doubtful question. It is a rule of law too well established to require sustaining citation that affidavits of jurors as to matters which inhere in the verdict cannot be received to impeach the verdict except as showing that the verdict...