Schmoyer v. Bourdeau

• Decision Date: 18 November 1966
• Docket Number: No. 11135,11135
• Citation: 420 P.2d 316,148 Mont. 340
• Parties: Marion D. SCHMOYER, Plaintiff and Appellant, v. Paul A. BOURDEAU, Defendant and Respondent.
• Court: Montana Supreme Court

Page 316

420 P.2d 316

148 Mont. 340

Marion D. SCHMOYER, Plaintiff and Appellant, v. Paul A. BOURDEAU, Defendant and Respondent.

No. 11135.

Supreme Court of Montana.

Submitted Oct. 6, 1966.

Decided Nov. 18, 1966.

James W. Cunningham, argued, Thompson Falls, Alex C. Morrison, argued, Plains, for appellant.

Eugene H. Mahoney (argued), Thompson Falls, Garlington, Lohn and Robinson, Sherman V. Lohn (argued), Missoula, for respondent.

W. W. LESSLEY, District Judge, sitting in place of DOYLE, Justice.

This personal injury damage suit was tried to a jury, and a verdict in favor of the plaintiff in the amount of $4,514.30 was returned.

A timely motion for a new trial was made by the plaintiff. This motion was denied by the District Court.

The sole issue for decision here is the single specification of error of the District Court in denying the motion.

The motion for new trial was supported by the affidavits of four of the trial jurors. These affidavits charged misconduct of the jury, during its deliberations. It was submitted without argument or brief on behalf of the movant, was taken under advisement, and subsequently denied.

A fair summary of the affidavits indicates one juror, who after the case was submitted, and during the jury's deliberations, stated to the other jurors that she had telephoned one of her relatives concerning prior litigation of plaintiff Schmoyer; that she had been informed by her relative that the plaintiff had, at a previous time, sued his own son over a ranch called '101 Ranch', and had added the statement, 'anyone who would sue his own son was not entitled to any verdict.' The same juror also referred to a pending lawsuit by plaintiff's wife against the same defendant and arising out of the same accident and made the further remark in that connection, 'if we give him anything, they'll make a killing next spring.'

The poll of the jury showed an eight to four verdict for the plaintiff. Three of the affiant-jurors had voted against the verdict; one affiant-juror had voted for it.

Two equally basic rights of a jury trial collide here. The first is the right to have a fair and impartial trial, free from misconduct of the jury in material matters. Section 93-5603, R.C.M.1947; Putro v. Baker, 147 Mont. 139, 410 P.2d 717; Goff v. Kinzle, Mont., 417 P.2d 105.

The second is the right to have a jury deliberate in camera, free and secure from frivolous and recurrent invasions of that privacy by disappointed litigants.

The verdict of the jury must be the end result of a fair trial. When the jury retires to the jury room it should be only concerned with the evidence and the law; the verdict, thus, is a result of a fair expression of opinion by all the jurors. The process is epitomized in the generic terms, freedom from outside surveillance and prying, and a fair expression of opinion of all jurors in the jury room. Const. of Mont. Art. III, § 23; Section 93-5105, R.C.M.1947.

Thus, we must spell out a verbal formula to keep intact and in balance these two basic ingredients of trial by jury, a rule that allows free expression of a jury, secure in its private deliberations, and on the other hand a method of detecting and preventing misconduct of that jury in material matters.

We admit that a long line of decisions indicates a strict construction of the rule to hold that a verdict cannot be impeached by the affidavits of the jurors. State v. Beesskove, 34 Mont. 41, 52, 85 P. 376; Hough v. Shishkowsky, 99 Mont. 28, 30, 43 P.2d 247; State Highway Comm'n v. Manry, 143 Mont. 382, 385, 390 P.2d 97. The decisions in Putro v. Baker, supra, and Goff v. Kinzle, supra, however considered and weighed, allow juror's affidavits to direct the granting of a new trial. A narrow construction of our law could lead us to refuse to...