Schoenrock v. Eib, 9488
| Decision Date | 28 June 1955 |
| Docket Number | No. 9488,9488 |
| Citation | 71 N.W.2d 82,75 S.D. 613,62 A.L.R.2d 295 |
| Parties | , 62 A.L.R.2d 295 Betty Rae SCHOENROCK, Special Administratrix of the Estate of Keith G. Schoenrock, Deceased, Plaintiff and Appellant, v. Roy EIB and Ivan Thompson, Defendants, Roy Eib, Respondent. |
| Court | South Dakota Supreme Court |
John M. Theodosen, Garretson, R. G. May, Sioux Falls, for plaintiff and appellant.
James R. Adams, Sioux Falls, Davenport, Evans, Hurwitz & Smith, Sioux Falls, Samuel W. Masten, Canton, for defendant and respondent, Roy Eib.
The question presented by this appeal is whether the conduct of the defendant, Eib, in mingling with members of the jury during recesses of court requires a new trial. The trial court denied a motion for a new trial and plaintiff has appealed.
The facts are as follows: Plaintiff brought this action against the defendants Eib and Thompson to recover damages for the alleged wrongful death of her husband. The jury returned a verdict in her favor against Thompson, but denied her a verdict against Eib. The record before us relates only to the conduct of Eib in mingling with the jury. There is no transcript of the testimony relating to the merits of the controversy, and whether a jury question was presented by the evidence so far as Eib is concerned, we are not advised, except by the fact that the issue of Eib's negligence was submitted to the jury by the trial court. Whether such submission will support a determination that a jury issue was presented by the evidence we do not determine. Conceding a jury issue was presented we are satisfied from the record before us that there was no abuse of discretion by the trial court in refusing a new trial.
The trial was in the courtroom of the courthouse at Canton. This courtroom is on the third floor. The entrance to the courtroom is from a hall at the head of the stairs. This hall has benches for seating purposes, a drinking fountain, and provides access to the men's rest room. During recesses of court spectators, jurors, attorneys and all others present mingle in this hall where it is permissible to smoke.
Plaintiff's affidavit is to the effect that she observed Eib conversing with members of the jury in this hall and she 'went into a hallway adjoining the courtroom and stood in a doorway on the east side of said hall and in a position where she was able to hear parts of the conversation,' between Eib and jurors. This conversation consisted of a comparison of farming conditions in Kansas, Eib's home state, and South Dakota. Eib stated, 'My if we just had land like this', and further that he was located 25 or 30 miles north of the droth-stricken area in Kansas and said 'Where we are located we are still all right', and 'Water is the big problem down our way and sometimes when they drill they get nothing but salt water.' Such was the general tenor of the conversations as described by plaintiff. Plaintiff's attorney stated that he observed Eib conversing with jurors but did not observe the 'extent thereof or the repetitious nature thereof.'
Respondent's affidavits disclose that plaintiff's attorneys conversed with members of the jury in this same hallway....
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