Meisch v. Sippy

• Citation: 77 S.W. 141,102 Mo.App. 559
• Parties: MEISCH, Appellant, v. SIPPY, Respondent
• Decision Date: 17 November 1903
• Court: Missouri Court of Appeals

77 S.W. 141

102 Mo.App. 559

MEISCH, Appellant, v. SIPPY, Respondent

Court of Appeals of Missouri, St. Louis

November 17, 1903

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

AFFIRMED.

Order affirmed.

Thomas B. Estep and Johnson, Houts, Marlatt & Hawes for appellant.

(1) No principle of law is more firmly established in this State than that the affidavits of jurors will not be allowed to discredit, impeach or overthrow a verdict returned by them. For much stronger reasons evidence will not be heard of loose declarations tending to impeach their verdict made by jurors to third persons. State v. Fox, 79 Mo. 109; State v. Dickmann, 11 Mo.App. 538, affirmed by the Supreme Court in 75 Mo. 570; State v. Dunn, 80 Mo 681; State v. Branstetter, 65 Mo. 149; Thompson & Merriman on Juries, p. 547, sec. 445; idem, p. 543, sec. 440; Mergargel & Connell v. Waltz, 21 Pa. Co. C. 633; City v. Plummer, 65 Ill.App. 419; Lane v Bryant, 37 S.W. 584; Purcell v. Tibbles, 69 N.W. 1120; Estes v. Carr, 30 S. E. (Ga.) 882. (2) All objections to a juror made after verdict must be supported as well by the affidavit of counsel as by client nothing less than this will suffice. State v Howard, 118 Mo. 136; State v. Burns, 85 Mo. 49; State v. Hunt, 141 Mo. 637.

Frank A. C. Macmanus for respondent.

(1) Depositions can be taken to support the allegations and be used on a motion for a new trial. 14 Ency. Pl. and Prac. 903, last paragraph; Schoofield v. Bunton, 20 Colo. 139; Gano v. Wells, 36 Kan. 688; Erwin v. Ball, 29 Ind. 95; Krudenier v. Shields, 70 Iowa 428; Jones v. State, 89 Iowa 182; Winslow v. Morrill, 68 Mo. 362; People v. Gall, 149 N.Y. 106. (2) Prior to the passage of the law now in force, affidavits of jurors would not be received when objected to, to impeach their findings. Query: How about a majority verdict? Thompson & M. on Juries, 315; State v. Branstetter, 65 Mo. 149; State v. Alexander, 66 Mo. 148; State v. Underwood, 57 Mo. 40. (3) The reasons as given in this case by the trial judge were amply sufficient. It is the duty of trial courts to guard with jealous care the jury from outside influence, and when this juryman went home and found out "it was the same case" from the members of his family, the evidence he decided the case upon had not been presented to the court. Neither did the gentleman have a right to consult his wife about the case, unless he obtained the permission of court. Walker v. Walker, 11 Ga. 203; Walker v. Hunter, 17 Ga. 364; Madden v. State, 1 Kan. 340; Knight v. Freeport, 13 Mass. 218; Allen v. Aldrich, 29 N.H. 63. (4) (a) Notwithstanding the fact that in the case of Kennedy v. Holliday, 105 Mo. 24, a new trial of the cause was refused, this phase of our case is well discussed. Also in Cilley v. Bartlett, 19 N.H. 312. (b) The action of the juryman Heinze in relating to his fellow-jurors what he thought he knew about the case, was gross misconduct on his part obtained as it was. Vaughn v. Dodson, 2 Swan 348. (c) It was equal misbehavior on the part of the entire jury to hearken to the recitals. (d) The disqualification of a person to act as a juryman, if unknown can be taken advantage of after verdict. State v. Weeden, 133 Mo. 70; Block v. State, 100 Ind. 137; Rhodes v. State, 128 Ind. 189; Jewel v. Jewel, 84 Me. 304; Mann v. Fairlee, 44 Vt. 672; Hester v. Chambers, 84 Mich. 562. (e) Prejudicial remarks will impeach verdict, and when juror Heinze said, "I wanted to make it $ 10,000, but the others wouldn't stand for it, I had it in for him, anyway," etc., he showed his disqualifications. Poole v. Railroad, 2 McCrary 251; Blolock v. Phillips, 38 Ga. 216; Jewesbury v. Sperry, 85 Ill. 56; State v. Allen, 89 Iowa 49; Walker v. Daily, 87 Iowa 375. (f) But like other matters relating to the conduct of trials, this matter, we take it, must be regarded as resting in the sound discretion of the court, and only subject to revision and reversal in cases of manifest abuse. Johnson v. Witt, 138 Mass. 479; Scott v. Smith, 133 Mo. 618; Rottman v. Smucker, 94 Mo. 143; Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463. (5) To warrant reversal of an order for new trial, it must clearly appear that no error occurred that may possibly have been prejudicial to the party who applied for the new trial. Ittner v. Hughes, 133 Mo. 693.

BLAND, P. J. Reyburn and Goode, JJ., concur in the result and in the reasoning of the second paragraph, but express no opinion on the question of whether a juror's statement.

OPINION

BLAND, P. J.

The suit was to recover damages for an alleged breach of contract of marriage, aggravated by seduction under the promise, and birth of a child.

The answer was a general denial and a disclaimer of knowledge of the birth of a child or responsibility therefor.

Plaintiff offered evidence tending to prove the allegations of her petition, and the defendant offered evidence tending to support his answer. There was a verdict for plaintiff, assessing her damages at $ 3,500, which was set aside on motion for new trial and a new trial granted. From the order granting a new trial, plaintiff appealed. The new trial was granted on the ground of misconduct on the part of one of the jurymen (Chas. Heinze) in the jury room after the jury had retired to consider of their verdict.

The learned trial judge handed down the following memorandum of his ruling on the motion:

"I feel bound to grant a new trial in this cause in order to maintain unimpaired the right of every litigant to have his or her case adjudicated before twelve impartial men.

"I have a very high regard for the right of trial by jury, and I realize the great importance of maintaining the system in its integrity.

"Every citizen who is called into court to have his rights determined by judicial proceeding ought to feel that he has had a fair, full and impartial hearing. And there should be no reasonable ground of complaint left to him at the end of the proceedings. Judicial proceeding should be free from even a semblance of suspicion.

"In this case it seems that one juror (Chas. Heinze) had heard the matters to be tried talked over before the trial (no doubt sometime before) but did not remember it when being examined as to his qualifications as a juror in the case, and therefore did not disclose the fact, and was accepted to try the cause. It seems that this came to him during the trial, and it is to be regretted that he did not then disclose it; but he did not. And he is one of the nine jurors who rendered the verdict.

"I regret that it is necessary to set aside this verdict because, but for the facts above stated, the trial was, in my judgment, fair to both sides.

"The defendant will be required to pay all accrued costs, and the case will have an early setting, if the plaintiff desires it."

To prove the alleged misconduct the following affidavits were filed:

"My name is Joseph E. Sculley. I reside at 3120 Newstead avenue in this city, and was selected as a juryman in November 1902, in circuit court room No. 5, of the St. Louis Circuit Court, and acted as such in the case of Meisch v. Sippy. While we, as jurymen, were in consultation with each other over the evidence of the cause, we were more or less interrupted by one of the jurors telling us that he knew all about this case; that his sister knew the plaintiff, and had told him all the facts concerning it, which facts he repeated in my presence to them. Mr. Heinze, the juryman mentioned above, particularly said to me that, 'I know this family, and she is a nice girl, and my sister has told me all about the case, but I did not know these were the same parties until I got home, and my people told me this was the same case, but I did not know this until after I was on the jury and heard some of the evidence, then, I knew it was the same case my sister had told me all about.' This was frequently repeated. I make this affidavit for the reason that I was called to the office of Mr. Macmanus and asked whether such a state of facts were true and on answering yes, he reduced the same to writing and asked me to sign it, which I now do.--Joseph E. Scully."

"My name is John J. Groves. I reside at 2316 N. Broadway, in the city of St. Louis, Missouri. I have lived all my life in this city, and I am acquainted with one Charles Heinze, who does business at Tenth and Chambers streets. I met him on the Third street market almost daily, and have known him for at least six or seven years. I also knew he was a juryman on the Sippy case, for I heard him speaking about it on or about the 24th day of November, 1902, while I was on the market. I met Mr. Heinze in company with two other persons; I was buying right near them, and heard the following conversation: Heinze says to his companions: 'Last week I was in a better place than out here on the street.' On being asked where, he said, 'On a jury in the Sippy case. I was in a nice warm room there;' and on being asked, 'What kind of a case was you on?' Heinze said it was a breach of promise case. 'When I first went on the jury I didn't know I knew anything about it, but when I heard the evidence, pshaw! I knew the whole thing long before, for when she had him arrested down at the Four Courts summer before last, my sister told me the whole thing, and I always knew she was a nice girl.' Of course, there was more said than I have given; I can not use the exact language. Yes, I know Joseph Sippy, and have known him for a long time, but not familiarly. I voluntarily told him about having heard this conversation, because I thought if the speaker had such knowledge as he said he had, it was not fair that he should act as a juryman, and I think so yet.--John J. Groves."

"My name is Henry Pins. I have lived in the northern part of St Louis,...