Schmitz v. Yant

• Decision Date: 31 December 1965
• Citation: 242 Or. 308,409 P.2d 346
• Parties: Iris SCHMITZ, Respondent, v. Cecil Oscar YANT and Lucille G. Yant, dba Electric Carpet Cleaning Works, Appellants.
• Court: Oregon Supreme Court

Page 346

409 P.2d 346

242 Or. 308

Iris SCHMITZ, Respondent, v. Cecil Oscar YANT and Lucille G. Yant, dba Electric Carpet Cleaning Works, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 3, 1965.

Decided Dec. 31, 1965.

Raymond J. Conboy, Portland, argued the cause for appellants. With him on the brief were Hollister & Thomas and William F. Thomas, Portland.

Paul Schultz, Oregon City, argued the cause for respondent. On the brief were Hibbard, Jacobs, Caldwell & Kincart and Phil H. Ringle, Jr., Oregon City.

Before McALLISTER, C. J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.

HOLMAN, Justice.

Plaintiff brought an action against defendants for loss of consortium, claiming this loss occurred as the result of an injury to her husband caused by defendant's negligent operation of an automobile. A trial was had which resulted in a defendants' verdict. Plaintiff filed a motion for a new trial. The court granted a new trial on the court's own motion--not upon plaintiff's motion. However, the order recited that the court had considered the affidavit of one of the jurors filed as a basis for plaintiffs motion. Defendants appealed from the court's order granting a new trial.

The affidavit which the court said it considered, and which was filed to provide a partial basis for plaintiff's motion, stated that during the voir dire examination of the jury a recess was taken by the court during which a prospective juror--who did not sit on the case--made certain statements claimed to be prejudicial. At this recess all jurors--those in the box as well as those present in the courtroom awaiting call-retired to the jury room, about 24 persons in all. The jury room was about 12 feet by 18 feet in size. The affiant stated that the prospective juror in question engaged her and others in the perimeter of their conversation in a discussion of the type of case in question. He said he did not think much of it because he had suffered a very severe and disabling injury of long duration which he described in detail and there had never been any loss of love and affection between him and his wife. He stated he did not see how there could be any loss of love and affection, no matter how serious the injury, if a man and his wife loved such other. Affiant further deposed that it was her feeling that the juror's statements might have had a prejudicial effect upon the jurors who sat on the case. She could not be certain how many of the jurors other than herself who were ultimately involved in deliberation actually heard the statements, but it was her impression that some of them had.

The order of the court granting a new trial stated as follows:

'* * * having considered * * * the affidavit of one of the jurors * * *

'I have reviewed the motion for a new trial and am convinced that there was prejudicial misconduct of the jury and that plaintiff is entitled to a new trial on the merits.

'The conduct of prospective juror Robert Sigourney was highly prejudicial. Had Mr. Sigourney stated because of his physical disability his wife had suffered great hardship and that a plaintiff would be entitled to the prayer in a case of this nature, and thereafter the jury finally empaneled returned a substantial verdict, I am convinced that this, too, would be prejudicial comment entitling the defendant to a new trial.

'* * * I, therefore, invoke the inherent judicial power of the court to grant a new trial * * *.

'It is hereby ordered and adjudged that plaintiff be granted a new trial on the Court's own motion because of prejudicial conduct occurring in the proceedings.'

ORS 17.630, relative to a new trial on the court's own motion, is a follows:

'If a new trial is granted by the court on its own motion, the order shall so state * * *. Such order shall contain a statement setting forth fully the grounds upon which the order [is] made * * *. In event an appeal is taken from such an order, the order shall be affirmed only on grounds set forth in the order or because of reversible error affirmatively appearing in the record.'

It is unnecessary to a disposition of this case to investigate the very interesting question of whether the court has the power to grant a new trial on its own motion based upon the identical grounds previously presented to the court as a basis for such a motion by a litigant.

By virtue of the terms of ORS 17.630 this court is limited, in sustaining an order for a new trial on the court's own motion, to a consideration of the grounds set forth in the order or to reversible error affirmatively appearing in the record. This case might easily be decided on the basis that the court's order states no ground as the basis for granting a new trial. The order mentions the court has considered the affidavit of the juror but does not say to what effect. It recites that the conduct of the prospective juror was prejudicial but does not say in what respect. We will treat the order as if it stated that the action of the prospective juror, which was set forth in the affidavit, was the basis for the new trial.

This case demonstrates a conflict between two basic judicial principles. The first is that a trial court has considerable latitude in granting a new trial, and all intendments are in favor of such orders. Bartholomew v. Oregonian Pub. Co., 188 Or. 407, 411, 216 P.2d 257 (1950). Also, where there has been a questionable occurrence during trial, a motion for a new trial is addressed to the sound discretion of the trial court and an order granting such a motion will be reversed only for a manifest abuse of discretion. Cicrich v. S.I.A.C., 143 Or. 627, 635, 23 P.2d 534 (1933); Clark v. Fazio, 191 Or. 522, 528, 230 P.2d 553 (1951); Burrows v. Nash, 199 Or. 114, 121, 259 P.2d 106, 107 (1953); Hillman v. North Wasco P.U.D., 213 Or. 264, 274, 323 P.2d 664 (1958). The basis for these rules is that the trial judge has the feel of the case and is in a better position to determine whether, in fact, the outcome was prejudiced by the untoward occurrence.

Running counter, in this case, is the principle that it is poor public policy to encourage witch hunts by unsuccessful litigants among the jurors in an attempt to find grounds for a new trial. Any other rule would tend to weaken and destroy the jury system because there would be no finality of decision. State v. Gardner, 230 Or. 569, 574, 371 P.2d 558 (1962); Carson v. Brauer, 234 Or. 333, 382 P.2d 79 (1963). In the latter case this court said, at page 342-343, 382 P.2d at page 84, as follows:

'One function that a verdict and its resulting judgment should perform is to terminate, if possible, the controversy out of which the judgment arose. One of society's major purposes in creating the state and establishing courts is to terminate controversy. If a verdict is to terminate controversy and if the resulting judgment is to possess value for the successful party, the judgment must have the attributes of finality, stability and permanency. Its overthrow must not be easy of accomplishment. Complete honesty, probity and uprightness must at all times be exacted of the jurors, but the courts must recognize that when the jurors, as laymen, are by themselves in the jury room they may at times indulge in remarks of doubtful merit. The state must assume that the tongue's slip up in instances of that kind does not tilt the scales.

'In Jorgensen v. York Ice Machinery Corp., 2 Cir., 160 F.2d 432, Judge Learned Hand said, concerning a motion for a new trial which charged misconduct of the jury:

"* * * On the other hand, it would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts would stand such a test; and although absolute justice may require as much, the impossibility of achieving it has induced judges to take a middle course, for they have recognized that the institution could not otherwise survive; they would become Penelopes, forever engaged in unravelling the webs they wove. Like much else in human affairs, its defects are so deeply enmeshed in the system that wholly to disentangle them would quite kill it. * * *"

It should be made clear that as between the conflicting principles of allowing the trial judge wide discretion in granting new trials and of protecting the jury system as an effective method of deciding disputes this court believes the latter to be of the greater consequence.

In discussing what affidavits of jurors are receivable in evidence as to misconduct of the jury, this court, in Carson v. Brauer, supra, 234 Or. at page 345, 382 P.2d at page 85, said as follows:

'* * * While jurors' affidavits are receivable in evidence in the sense that the trial court should permit them to be filed, affidavits which disclose nothing more than oral misconduct during the jury's deliberations cannot impeach a verdict. In order to make plain the meaning of the rule, we will restate it: The affidavit of a juror concerning utterances of other jurors during the deliberations or at any other material time cannot...