Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Welch
| Decision Date | 30 April 1895 |
| Docket Number | 1,460 |
| Citation | 40 N.E. 650,12 Ind.App. 433 |
| Parties | THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. WELCH |
| Court | Indiana Appellate Court |
From the Jennings Circuit Court.
Judgment affirmed.
S Stansifer, for appellant.
C. A Korbly and W. O. Ford, for appellee.
OPINION
The first question to be determined in this case is whether appellant is entitled to a new trial on account of the misconduct of appellee on the trial in the court below, which resulted in a verdict in his favor.
It appears that on the 20th day of March, 1894, appellee made an arrangement with the proprietor of a hotel in Vernon to furnish meals during the trial to himself and his witnesses at a reduced rate; that on the morning of the 26th of March appellee and his witnesses arrived at Vernon at 8 o'clock, and appellee procured and paid for thirteen tickets for dinner, and appellee and his witnesses took dinner at said hotel on said day, but did not return there for any other meal; that one Granson Osborn keeps a restaurant and bakery in Vernon, and he was called on said jury to fill the place of one of the regular jurors; and that the jury was empaneled and the opening statements were made by counsel in said cause before the noon adjournment on said day; that the cause was finally given to the jury on the evening of the 29th and the verdict returned on the morning of the 30th of March, 1894; that appellee, after dinner on the day said jury was empaneled, took his witnesses to said bakery and restaurant of said juror Osborn for their meals during the continuance of said trial; that appellee, with his witnesses, went to the restaurant on account of the crowded condition of the hotel (whether the restaurant was also crowded does not appear); that at the time appellee went to the restaurant he did not know that said Osborn was the owner thereof, or in any manner connected therewith, and that he did not know the fact until after he had made arrangements with his witnesses to go there (but whether he learned such fact before he made the arrangement with the clerk, or person in charge of the restaurant, to take them there is not shown); that two at least of appellant's employes and witnesses who were in attendance at the trial for the purpose, as stated by appellee in his affidavit, of assisting in managing appellant's side of said case also took their meals at said restaurant during the trial (but what authority, if any, said employes had in connection with said trial or the management thereof, or what they did, if anything, in relation thereto, does not appear); that appellee and the juror had no previous acquaintance, but whether they had any conversation with each other during the trial, is controverted.
It clearly appears by bill of exceptions that all the evidence in relation to this question is embraced in the affidavits incorporated therein.
Giving the affidavits the most favorable construction in behalf of the appellee, as we have done in the above and foregoing statement, the fair and reasonable inference is that if he did not know who was the owner of the restaurant at the time he first went there to see about procuring meals for himself and witnesses, he knew when he made the arrangements for himself and witnesses to take their meals there, or at least before any of them took their first meal at the restaurant, that the juror was the owner thereof, but "that he never thought of influencing said Osborn, or in attempting to influence him as a juror, but simply took his meals there because he could receive better accommodations there, and because it was a public eating house, being patronized by the public generally." In other words, before the jury was empaneled appellee entered into an agreement with the proprietor of the Sherman House to board and furnish meals to him and his witnesses during said trial at reduced rates and paid for thirteen tickets for dinner, and then after the jury had been sworn and the opening statements made, without saying anything on the subject to the proprietor of the Sherman House, but because, as he says, of its crowded condition he took all of his witnesses, for their meals during the continuance of the trial, to the restaurant kept by one of the jurors.
It is the rule that in order to justify the setting aside of a verdict on account of the misconduct of jurors, such misconduct must be gross and have probably injured the complaining party, but where the misconduct is that of the prevailing party the court will not inquire as to what effect the misconduct had upon the verdict. Huston v. Vail, 51 Ind. 299; Drew v. State, 124 Ind. 9, 23 N.E. 1098; Louisville, etc., R. W. Co. v. Hendricks, 128 Ind. 462, 28 N.E. 58.
It is also the rule that only the improper statements of counsel made in the presence of the court and the adverse party of such a material character as that it appears probable that they were instrumental in obtaining a wrong verdict will authorize a reversal. Buscher v. Scully, 107 Ind. 246, 5 N.E. 738; Maybin v. Webster, 8 Ind.App. 547, 35 N.E. 194.
The rule is also well established that misconduct on the part of any one connected with a trial which is known to and acquiesced in without objection by the party or his counsel, even though it be of a character which might otherwise vitiate the verdict, can not afterwards be made available as a ground for setting aside a verdict. Waterman v. State, 116 Ind. 51, 18 N.E. 63.
In the administration of justice it is of prime importance that litigants should have implicit confidence in the integrity and impartiality of courts and juries. In order to maintain this confidence courts can not be too strict in guarding trials by jury from improper influence. It should be an inflexible rule of law that no party to a suit can profit by his own misconduct. Conceding, therefore, that appellee acted in good faith and that the juror was not knowingly influenced in his decision by the fact that the appellee and his witnesses took their meals at his restaurant during the trial, the mind of the juror, without intending any harm, might well be unconsciously turned in the direction of the patron who was paying him for meals for fifteen or twenty witnesses each day.
The circumstances under which appellee took his witnesses to the restaurant throw grave suspicion on him. It is true the explanation seems fair and reasonable, but he does not clearly show that he did not know the juror was the proprietor of the restaurant before he completed the arrangement to take his witnesses there. If he knew this fact it is better that he and his witnesses should have suffered inconvenience than that a practice should be sanctioned which is capable of abuse or at least of being the ground of uneasiness and suspicion. The administration of justice should not only be fair and impartial in fact, but the appearance should also be fair and impartial. There should be nothing in the conduct of the parties and jurors to arouse suspicion.
If the attorneys or representatives of appellant having the management of said cause in said court had knowledge of the facts and circumstances in relation to the misconduct of appellee, during the trial, their failure to object thereto seasonably would be regarded as a waiver. A party can not be permitted to lie by after having knowledge of such misconduct and complain only when the verdict becomes unsatisfactory to him.
It does not clearly and affirmatively appear that counsel or any representative having the management of said cause in said court had such knowledge during the trial. Neither does it appear that appellant, through its counsel and representatives, at the trial, did not know of the alleged misconduct of appellee before the verdict was returned. It does appear, however, that two of appellant's employes and witnesses took their meals at the restaurant at least a part of the time.
In this connection it is proper to say it is not shown in any of the affidavits that counsel for appellant or any of appellant's representatives authorized to assist in the management of said trial, had anything to do with said witnesses and employes of appellant taking their meals at said restaurant. It does not appear that appellant, through its agents or representatives, made any arrangements as to where said witnesses and employes should board, or that appellant paid for their meals, or any of them. So far as disclosed by the affidavits, said witnesses and employes were acting on their own responsibility. The juror knew they were taking meals at his restaurant, and the inference is they knew the juror was the owner of the restaurant, although this fact is not stated. There is nothing in the record to indicate that any of said witnesses and employes of appellant had any interest in the result of the litigation.
The fact that appellee says he acted in good faith, and that his explanation is fair and reasonable, does not necessarily excuse his conduct. Whatever the reasons therefor may have been, the appellee, after the jury was empaneled, should not, under the circumstances, have changed his boarding place from the hotel to the juror's restaurant.
Conceding that he was ignorant of the juror's connection with the restaurant when he first went there, he does not pretend that he was ignorant of this fact at the time the change was actually made. In the light of his own explanation, the inference is that he was fully advised of these facts before he or any of his witnesses took any meal at the restaurant, and that with full knowledge of all these facts he continued to board them there during the trial without making any effort, during that time, to secure such board at the hotel or any other...
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Pittsburg, C., C. & St. L. Ry. CO. v. Welch
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