Milbourne v. Robison

• Decision Date: 04 May 1908
• Parties: JULIA MILBOURNE, Appellant, v. JOSEPH ROBISON, Respondent
• Court: Kansas Court of Appeals

110 S.W. 598

132 Mo.App. 198

JULIA MILBOURNE, Appellant, v. JOSEPH ROBISON, Respondent

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from DeKalb Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Eastin Corby & Eastin and William M. Fitch for appellant.

(1) The affidavit of juror Sifers was incompetent to impeach the verdict of the jury and it was the duty of the court to disregard such affidavit and refuse consideration. Pratte v. Coffman, 33 Mo. 71; Sawyer v. Railway, 37 Mo. 264; State v. Underwood, 75 Mo. 51; State v Copenhaver, 39 Mo. 430; McFarland v. Bellows, 49 Mo.App. 311; State v. Branstatter, 65 Mo. 156; State v. Alexander, 66 Mo. 163; Phillips v Stewart, 69 Mo. 149; State v. Fox, 79 Mo. 112; State v. Dunn, 80 Mo. 694; State v. Rush, 95 Mo. 199; State v. Cooper, 85 Mo. 261; State v. McNamara, 100 Mo. 100; State v. Wood, 124 Mo. 417; Miller v. Railway, 5 Mo.App. 476; Clark v. Shoe Co., 16 Mo.App. 463; State v. Dieckman, 11 Mo.App. 546, 75 Mo. 570; McMurdock v. Kimberlin, 23 Mo.App. 528; McCormick v. Monroe, 64 Mo.App. 197; State ex rel. v. Gage, 52 Mo.App. 470; Jobe's Admr. v. Weaver, 77 Mo.App. 665; State v. Long, 201 Mo. 676; Devoy v. Railroad, 91 S.W. 140; Meisch v. Sippy, 102 Mo.App. 561; Leahy v. Tesson, 108 Mo.App. 373; Greenleaf, Evidence (13 Ed.), sec. 252a; Elliott, Evidence, sec. 640. (2) The affidavit of juror Siefers could not be received to impeach the verdict of the jury, notwithstanding the fact that he did not agree with the verdict. Leahy v. Tesson, 108 Mo.App. 372. (3) The affidavits of jurors Brown, Crowder, Shearer and Owen when offered to support their verdict should have been received, as affidavits of jurors are incompetent for any other purpose. Citations same as points 1 and 2. (4) It is universally recognized that the affidavits of jurors which tend to show that damages were determined by average or by chance or by a quotient verdict, will not be received to impeach their verdict. The only exception to this rule is where such affidavits are provided for by statute. Pleasants v. Heard, 15 Ala. 408; Ward v. Blackwood, 48 Ala. 396, 3 S.W. 624; Wilson v. Berryman, 5 Cal. 44, 46; State v. Freeman, 5 Conn. 348; Crossdale v. Tantum (Del.), 6 Houst. 218; Kelley v. State, 39 Fla. 122, 22 So. 303; Reed v. Thompson, 88 Ill. 247; Drummond v. Leslie (Ind.), 2 Blackf. 453; Houck v. Allen, 126 Ind. 269, 25 N.E. 897; State v. Logan (Ky.), 3 A. K. Marsh, 396; State v. Chartien, 35 La. 1031; Dorr v. Fenno (Mass.), 12 Pick. 525; Com. v. White, 147 Mass. 80, 16 N.E. 707; Battle Creek v. Haak, 139 Mich. 514; Prussel v. Knowles (Miss.), 4 How. 95; Dodge v. Carroll, 59 N.H. 237; Brewster v. Thompson, 1 N. J. L. 32; Dana v. Tucker, 4 John (N. Y.), 487; Williams v. Montgomery, 60 N.Y. 648; Farrar v. State, 2 Oh. St. 54; Cline v. Broy, 1 Ore. 89; Stull v. Stull, 197 Pa. 243, 47 A. 240; Luft v. Linganie, 17 R. I. 420, 22 A. 942; Smith v. Culberson, 9 Rich. L. 106 (S. C.), 10 Id. 212; Ulrick v. D. L. and T. Co., 2 So. Dak. 285, 49 N.W. 1054; Consol. I. M. Co. v. T. H. I. Co., 57 F. 898; Sheldon v. Perkins, 37 Vt. 557; Moses v. Cromwell, 78 Va. 675; C. & O. R. R. Co. v. Patton, 9 W.Va. 662; Galloway v. Floyd, 36 Tex. Civ. App. 379.

Kendall B. Randolph, Hewitt & Hewitt and E. G. Robison for respondent.

(1) The granting of a new trial is largely within the discretion of the trial court, and if the trial court, from all of the facts and circumstances before it and from what the judge saw and heard, was convinced that the verdict of the jury was a quotient verdict, then the appellate court should not disturb such finding. The trial court must be satisfied with the verdict, otherwise it is its duty to set it aside. Helm v. Bassett, 9 Mo. 54; Rickroad v. Martin, 43 Mo.App. 603; Taylor v. Agricultural Co., 47 Mo.App. 257; Mfg. Co. v. Cunningham, 73 Mo.App. 382. (2) The jury were guilty of misbehavior and the order granting a new trial, on the seventeenth ground of the motion, amounted, under all of the circumstances, to a finding that the jury were guilty of misbehavior. R. S. 1899, sec. 801. (3) The refusal of the court to strike out the affidavit of J. J. Sifers, a juror, who did not agree to the verdict nor participate in making it, was but an incident to the proceeding, and the court under the authority of Reed v. Winn, 61 Mo.App. 621, refused to strike it out.

OPINION

ELLISON, J.

--This action was instituted to recover damages for an alleged breach of promise of marriage. There was a trial in the circuit court which resulted in a verdict for the plaintiff. On defendant's motion the verdict was set aside and a new trial granted; whereupon plaintiff appealed and asks to have the order reversed with directions that judgment be entered on the verdict. The new trial was granted on the ground of misconduct on the part of the jury. The misconduct charged was in agreeing to make a verdict by each juror putting down an amount, adding those amounts and dividing the sum by twelve, the quotient to stand as the verdict.

There was a hearing or trial had on the motion for new trial, at which evidence was introduced, both oral and written. Various objections to evidence were made and exceptions taken to the rulings of the court thereon. The depositions or affidavits of a number of jurors who tried the case were offered to sustain the verdict. On objections to these the court ruled them out on technical grounds. Oral testimony of certain jurors was offered and such offers were also rejected and the evidence excluded. But the evidence of a juror in the form of an affidavit or deposition was offered and admitted without objection from plaintiff which tended to sustain the charge in the motion for new trial that the verdict was a quotient verdict, agreed upon beforehand, as above stated. It was upon that evidence the court sustained the motion for new trial, and the question for decision is, can such evidence be received and allowed probative force?

There are not many propositions of law which have been oftener stated and more firmly emphasized than that the evidence of a juror will not be received to impeach the jury's verdict. [Devoy v. Transit Co., 192 Mo. 197, 218, 91 S.W. 140; Leahy v. Tesson, 108 Mo.App. 372, 83 S.W. 781; McMurdock v. Kimberlin, 23 Mo.App. 523.] But that statement, like that of any other branch of the law of evidence, is founded on the assumption that the opposing party objected to its introduction. If the evidence of a juror is permitted by the opposite party to be introduced without objection, he waives all right to complain and will not be heard to say on appeal that it was improper. We so decided in Winn v. Reed, 61 Mo.App. 621. But as plaintiff has made earnest objection to the action of the trial court in considering such evidence, even though admitted without objection, we have thought it well to again examine the question, as though not heretofore considered.

In People v. Chin Non, 146 Cal. 561, 80 P. 681, it was held that the district attorney might waive his right to have a juror's affidavit excluded and that when so admitted it was evidence and Winn v. Reed is referred to in support of the ruling. In Perry v. Bailey, 12 Kan. 539, misconduct of some of the jury was charged in the motion for new trial and the affidavit of one of the jurors was introduced in support of the motion. The opinion was written by Justice BREWER, who said that "No counter testimony was offered, and the question is whether, upon this showing, the verdict ought to have been set aside. A preliminary inquiry is whether the testimony offered was competent. The misconduct of one juror is attempted to be shown by the affidavit of another. It may perhaps be said that no objection was urged to this testimony, and that, if the parties were satisfied to admit it, this court might properly treat it as competent." In Dorr v. Fenno, 12 Pick. 524, 525, there was a quotient verdict and the jurors were questioned "with the assent of both parties, and neither of them can now be permitted to object to it." In Woodward v. Leavitt, 107 Mass. 453, as will be seen at pages 459 and 469, objection was made to the evidence at the trial court; and so of Mattox v. United States, 146 U.S. 140, 36 L.Ed. 917, 13 S.Ct. 50.

No action is more common in our Supreme Court than that which disposes of objections to evidence, made for the first time in that court, by the ruling that as no objection was made in the trial court and exception taken, the point is considered as having been waived and will not be heard. This is an established rule. [2 Elliott on Evidence, sec. 881.] "A party who agrees that his adversary may go into evidence which may be inadmissible if objected to, cannot afterwards complain of the reception of such evidence." [1 Thompson on Trials, sec. 692.]

There is a distinction between competent evidence and a competent witness. The evidence may be relevant and applicable to the matter under investigation, but the source through which it is offered may be objectionable and non-competent. "So, while the testimony may be relevant and admissible if it came from a competent witness, it is inadmissible, over proper objection and showing, if the witness himself is incompetent." [2 Elliott on Evidence, sec. 693.] And, if a party calls a witness who is incompetent, or knowingly permits him to be examined without objection, he will be held to have waived all known objection to the competency of the witness. [Farber v. Railway, 139 Mo. 272, 284.] "If a party allows competent evidence of an incompetent witness to go to a jury without objection, he should not afterwards complain of the finding of the jury thereon. Not objecting to the evidence is substantially saying that the party is satisfied with it." [...