Mix v. North American Co.
| Decision Date | 04 November 1904 |
| Docket Number | 210 |
| Citation | 209 Pa. 636,59 A. 272 |
| Parties | Mix v. North American Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 2, 1902.
Re-argued March 22, 1904.
Appeal, No. 210, Jan. T., 1903, by defendants, from judgment of C.P. No. 5, Phila. Co., March T., 1901, No. 764, on verdict for plaintiff, in case of Lorraine P. Mix v. North American Company, Thomas B. Wanamaker and E. A. Van Valkenburg. Reversed.
Trespass to recover damages for libel. Before MARTIN, P.J.
At the trial it appeared that the action was based on certain articles published in the North American in October, 1900 and February, 1901, which publications charged plaintiff with the murder of her former husband, Dr. George W. Bull, by poison.
Verdict and judgment for plaintiff for $25,000. Defendant appealed.
Error assigned among others was (223).
The learned court erred in refusing to grant defendants a new trial, notwithstanding the evidence of the corrupt solicitations of certain of the jurors in behalf of the plaintiff, the misconduct of the jury, and the various irregularities in connection therewith, both during the course of the trial and after the jury had retired to deliberate upon their verdict, tending prejudicially to affect their deliberations and judgment, which things were made known to the court either while the trial was in progress or by depositions taken subsequently thereto; and upon the ground of after-discovered evidence.
The evidence taken by depositions in support of a motion for a new trial is summarized in the opinion of the Supreme Court.
Judgment reversed and a venire facias de novo awarded.
James Gay Gordon and George S. Graham, for appellants. -- Evidence of jurors touching the misconduct of themselves and their fellows was admissible: Mattox v. United States, 146 U.S. 140 (13 S.Ct. Repr. 50); Ritchie v. Holbrooke, 7 S & R. 458; Stull v. Stull, 197 Pa. 243.
The improper influence exerted upon jurors is ground for a new trial: Owen v. Schmidt, 14 Phila. 183.
It is improper for any person to talk with jurors as to a case which they are empaneled to try, and where a party, or one in his behalf, does so in such a manner as to justify the assumption that he wishes to influence the jurors, a verdict in his favor will be set aside and a new trial granted: Chahoon v. Hackley, 5 Kulp, 397; Blaine v. Chambers, 1 S. & R. 169; Sohn v. Hershey, 5 Lanc. Law Rev. 301; Com. v. Martin, 16 Pa. C.C. Rep. 597; Johnson v. Ry. Co., 8 Del. Co. Rep. 346; Francis v. Phila., etc., Ry. Co., 13 Mont. Co. Law Rep. 176; Keegan v. McCandless, 7 Phila. 248; Redmond v. Royal Ins. Co., 7 Phila. 167; Boreland v. St. Clair, 4 Pa. C.C. Rep. 541; Elkins v. Gaff, 2 W.N.C. 586; Montgomery v. Scott Twp., 26 Pitts. Legal Jour. 193; Harvester Co. v. Hodge, 6 Pa. Dist. Rep. 378; Reins v. People, 30 Ill. 256; Rickard v. State, 74 Ind. 275; Com. v. Heden, 162 Mass. 521 (39 N.E. Repr. 181); Ritchie v. Holbrooke, 7 S. & R. 458; Owen v. Schmidt, 14 Phila. 183; Com. v. Martin, 16 Pa. C.C. Rep. 140.
It certainly cannot be that gambling can take place in the juryroom, and jurors be subjected to the influence of this vice, and to the probable power which might thereby be acquired by a successful participation in the game over the loser, and that such practice will be passed over without notice. It certainly cannot be that a juror losing money at a game, and requiring more for further gambling, can be permitted to send out and receive money from the outside. The very suggestion of such a matter carries with it its own decision and its own argument. So, too, as to communications over the telephone; they admit of possibilities of improper influence so subtle and so palpable as not to require discussion.
Henry J. Scott, with him James Fitzpatrick and Anthony A. Hirst, for appellee. -- The court cannot consider the subjectmatter of assignment No. 223, because it violates rule 29 of this court: Irvin v. Kutruff, 152 Pa. 609; Saxton's Estate, 195 Pa. 459.
The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ of error: Henderson v. Moore, 9 U.S. 11; Newcomb v. Wood, 97 U.S. 581.
A new trial will not be granted for irregular conduct by a juror, which has done no harm: Com. v. Cressinger, 193 Pa. 326; Heiss v. Lancaster, 18 Lanc. Law Rev. 289; Leitz v. Hohman, 18 Lanc. Law Rev. 217; Com. v. Zuern, 24 Pa. C.C. Rep. 264; Megargel v. Waltz, 21 Pa. C.C. Rep. 633; McCausland v. McCausland, 1 Yeates, 372; Shomo v. Zeigler, 10 Phila. 611; Hawley v. Acker, 2 Woodw. 237; Com. v. Jongrass, 181 Pa. 172; Owen v. Schmidt, 14 Phila. 183; Moss v. Com., 107 Pa. 267; Kramer v. Kister, 187 Pa. 227; Com. v. Hurd, 177 Pa. 481; Com. v. Painton, 5 York, 140; Scott v. Reyer, 5 Leg. Gaz. 73; West Chicago St. R.R. Co. v. Lundahl, 183 Ill. 284 (55 N.E. Repr. 667); State v. Tilghman, 33 N.C. 513; Kennedy v. Com., 2 Va. Cas. 510; Masterson v. State, 144 Ind. 240 (43 N.E. Repr. 138); Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385 (35 N.E. Repr. 723); Armleder v. Lieberman, 33 Ohio St. 77; Hamburger v. Rinkel, 164 Mo. 389 (64 S.W. Repr. 104); Com. v. Cleary, 148 Pa. 26; Com. v. Salyards, 158 Pa. 501; Com. v. Morgan, 3 Pa. C.C. Rep. 151; Com. v. Clemmer, 2 Pa. C.C. Rep. 629; Creek v. State, 24 Ind. 151; State v. Wart, 51 Iowa 587 (2 N.W. 405); Dozenback v. Raymer, 13 Colo. 451 (22 Pac. Repr. 787); Alexander v. Dunn, 5 Ind. 122; Stutsman v. Barringer, 16 Ind. 363; New Albany v. McCulloch, 127 Ind. 500 (26 N.E. Repr. 1074); Perkins v. Ermel, 2 Kans. 325; Morrow v. Saline Co., 21 Kans. 484; Smith v. Thompson, 1 Cowen, 221; Ex parte Hill, 3 Cowen, 355; Anthony v. Smith, 17 N.Y.S. 503; Downer v. Baxter, 30 Vt. 467; State v. Cottrill, 52 W.Va. 363 (43 S.E. Repr. 244); Marzen v. People, 190 Ill. 81 (60 N.E. Repr. 102); Gott v. People, 187 Ill. 249 (58 N.E. Repr. 293); Moore v. People, 26 Colo. 213 (57 Pac. Repr. 857).
The depositions are not before this court: France v. Ruddiman, 126 Pa. 257; Com. v. Ramsay, 166 Pa. 642.
Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and THOMPSON, JJ.
At the first session of the present term an opinion was filed in this case in which we held that we could consider only the last assignment of error, because all of the rest related to matters not brought up to us for review. There was no certificate, as required by rule 22, signed in the following form: "The foregoing notes of testimony, with the exceptions taken by counsel during the trial to the rejection or admission thereof, and the charge with the exceptions thereto, have been examined by me, and are hereby approved and ordered to be filed. judge;" and, the said rule having been invoked by counsel for the appellee, there seemed to be no course open to us except to enforce it, for it did not appear that a single exception had been taken under the established form of the common law. Since that opinion was filed counsel for appellants have satisfied us that bills of exception, bringing up the matters to which the dismissed assignments of error related, had been allowed and filed, but were so attached to the record that, though looked for, they naturally escaped our notice, as is frankly admitted by counsel for appellants. Our view, on discovering that exceptions had been properly taken, was that the assignments of error based upon them should be taken up and disposed of; but, as counsel for appellants say they do not now press these assignments, and are willing to allow the reversal of the judgment to rest upon the disposition made of the last assignment, we will not pass upon any other.
We are asked to dismiss the last assignment as being in violation of rule 29, which provides: The contention of the appellee is that the last assignment contains four distinct specifications of error, but in this we do not concur. While four specific reasons are given why the new trial should have been awarded, the single error alleged by the assignment is the denial of it. The one distinct question raised is the proper exercise of the court's discretion in passing upon the application for the new trial when asked to award it for the four reasons set forth in the assignment: First, on the ground of the corrupt solicitation of the jurors; second, misconduct of the jurors; third, various irregularities and improprieties on the part of the jury after they had retired to deliberate upon their verdict; fourth, for after-discovered evidence. There might have been four specific assignments based upon the four reasons stated, but the four assignments together would have alleged but a single error, brought to our attention by this last assignment, which cannot, therefore, be regarded as violative of the rule referred to.
The refusal to grant a new trial for such reasons as are set forth in the assignment before us rests, as a rule, in the sound discretion of the lower court, and will not be reviewed here; but, when there is an allegation of the court's abuse of its discretionary power in passing upon an application for a new trial, we have repeatedly held it to be our duty to inquire into the facts, and if, after due consideration of them, abused discretion clearly appears, the improper action below must be reversed and the wrong done corrected: Smith v. Times Publishing Co., 178 Pa. 481.
In this case the alleged abuse of discretion appears from the depositions taken in support of the motion...
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Mix v. N. Am. Co.
... 59 A. 272209 Pa. 636 MIX v. NORTH AMERICAN CO. et al. Supreme Court of Pennsylvania. Nov. 4, 1904. Appeal from Court of Common Pleas, Philadelphia County; Martin, Judge. Action by Lorraine P. Mix against the North American Company and others. Judgment for plaintiff, and defendants appeal. ......