Schultz v. Valle

• Decision Date: 12 June 1984
• Docket Number: No. 3-783A229,3-783A229
• Citation: 464 N.E.2d 354
• Parties: Susan SCHULTZ, as Administratrix of the Estate of Harold R. Schultz, Deceased, and Welsh Bros. Motor Service, Defendants-Appellants, v. Ray VALLE, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 354

464 N.E.2d 354

Susan SCHULTZ, as Administratrix of the Estate of Harold R Schultz, Deceased, and Welsh Bros. Motor ServiceDefendants-Appellants, v.Ray VALLE, Plaintiff-Appellee.

No. 3-783A229.

Court of Appeals of Indiana Third District.

June 12, 1984.

Fred M. Stults, Jr., Fred M. Stults, III, Robert P. Forszt, Stults, Custer, Kutansky & McClean, Gary, for defendants-appellants.

Michael F. Yudt, Yudt & Yudt, Merrillville, for plaintiff-appellee.

GARRARD, Judge.

Susan Schultz, as administratrix of the estate of Harold R. Schultz(Schultz) and Welsh Bros. Motor Service (Welsh Bros.) appeal from an adverse judgment entered upon a jury verdict awarding $85,000 to Ray Valle.Valle's complaint arose out of an accident involving Valle's motorcycle and a tractor-trailer operated by Harold Schultz for his employer, WelshBros. ¹

Schultz and Welsh Bros. raise four issues on appeal.

I.Whether the fact that several jurors consumed alcoholic beverages at a supper break taken after they had begun deliberations and before they had reached a verdict denied Schultz and Welsh Bros. a fair trial.

II.Whether the court erred by refusing to read to the jury the defendant's final instruction No. 2.

III.Whether the court erred by refusing to read to the jury all of defendant's final instruction No. 3.

IV.Whether the court erred by limiting the testimony of Mary Ann Butler, the Supervisor of Records for Valle's employer, as to reasons for Valle's absenteeism.

I.Consumption of alcoholic beverages by jurors.

The trial of this cause began on March 28, 1983.By 3:30 p.m. on March 30, 1983, the parties had made their closing arguments, the judge had read the final instructions and the jury had begun its deliberations.

At approximately 7:30 p.m., the jurors broke from their deliberations to have supper at the Old Style Inn under the supervision of the bailiff, Carol Leveritt.The jurors resumed their deliberations in the jury room after supper at approximately 9:00 p.m.They returned the verdict in favor of Valle at approximately 12:15 a.m. the following morning.The court entered judgment and discharged the jury.

On April 4, 1983, Robert P. Forszt, co-counsel for Schultz and Welsh Bros., began a partial canvas of the jury by contacting juror Karen Zorick by telephone.While speaking with Zorick, Forszt learned that before supper on March 30, the bailiff had advised the jurors of a court policy permitting jurors to have up to two alcoholic beverages with their evening meal.Zorick had consumed a wine spritzer with her supper and Forszt confirmed in subsequent telephone conversations that several other jurors had consumed varying quantities of alcohol at the meal.

Schultz and Welsh Bros. sought to depose various people to determine the extent of the jurors' alcoholic consumption but the court quashed the subpoenas.Schultz and Welsh Bros. then sought an evidentiary hearing at which all jurors would be available for testimony.Said hearing was held on May 24, 1983.At the hearing Leveritt, the bailiff, testified that the court had told her she could allow the jurors to consume alcoholic beverages at supper but "that they are not to have more than two and they're not to have anything with straight liquor."Recordat 49, lines 5-14.She said further that none of the jurors ever appeared intoxicated after supper or complained that another juror appeared intoxicated.Recordat 50, lines 4-23.Mr. Schmidt, the foreman, testified that none of the jurors were intoxicated or under the influence of alcoholic beverages during the deliberations.Recordat 55, lines 18-23.

The testimony revealed that seven jurors consumed alcoholic beverages before or during their meal.Two jurors consumed two beers each, two consumed three beers each, one had two glasses of Scotch and water, one had a wine spritzer and one had a "highball."Recordat 54, lines 3-11.

As the judge was preparing to discharge the jurors from the hearing, the following dialogue took place between the court and one of the jurors:

"THE COURT: Yes, sir?

MR. PEARSON: I would like to add I think having the drinks we did helped more than anything.There was a lot of tension starting to build up during the time we were there.I don't know if it was coming back from the meal or the walk but--

THE COURT: An hour and a half break and a full stomach makes a difference.

MR. PEARSON: Seems like we were getting at each other's throat.

THE COURT: You were due for a break maybe."

Recordat 61, lines 8-20.

Schultz and Welsh Bros. filed their motion to correct errors on May 27, 1983, alleging those errors that are now asserted on appeal.Among the relief sought was a new trial.The court denied the motion to correct errors on June 27, 1983.

It is perhaps a blessing that no court of this state since the late nineteenth century has had to consider the treatment to be given a verdict rendered by a jury composed of one or more members who had consumed alcoholic beverages during the course of their duties.²Only in Davis v. State(1871), 35 Ind. 496, were the facts similar to those of the present case where an officer of the court expressly permitted the drinking by the jurors after deliberations had begun.In Davis, the defendant was found guilty of murder and sentenced to hang.After final instructions had been given, the bailiff and two jurors separated from the other jurors and went to a saloon for a drink.The Supreme Court was not certain how much the jurors drank or what effect the drinking may have had on their judgment.The court, in reversing and remanding for a new trial, said:

"If misbehavior, such as that shown by the affidavits, and which is without attempted palliation or justification, should not be regarded as sufficient to set aside the verdict, it would be a stigma upon the law and a disgrace to the courts.We do not mean to say that the court should enter upon the question as to how far such conduct was or was not excusable or innocuous.It will be time to decide that question when it shall come up.In this case it does not arise.We concede that on this point the authorities are not uniform.But as to the sufficiency of such misbehavior unexplained, to set aside the verdict, the authorities are abundant and satisfactory."

Davis, 35 Ind. at 499-500.The court cited cases from two other jurisdictions, The State v. Bullard(1844), 16 N.H. 139;andGregg v. McDaniel(1846), 4 Harring.Del. 367 supporting the propriety of granting a new trial after the discovery of consumption by jurors of alcoholic beverages during deliberations and without proper cause.

One other Indiana case involved the use of alcoholic beverages during deliberations but without the complicity of any officer of the court.In Creek v. State(1865), 24 Ind. 151 the jury found the defendant guilty of manslaughter.The Supreme Court recognized the reprehensibility of such conduct but refused to grant a new trial because the verdict appeared to be clearly correct and the prosecution had shown that the alcohol had had no adverse effect on the capability of the jurors.

The two other Indiana cases relevant here involved drinking by jurors prior to deliberations.In Pratt v. State(1877), 56 Ind. 179 one juror was found to have consumed a glass of whiskey during one or two of the adjournments in the week-long trial.In Carter v. The Ford Plate Glass Company(1882), 85 Ind. 180, a juror drank one beer during a recess.The court held in each case that proof of the consumption of alcohol alone was insufficient to warrant the grant of a new trial.

In Brown v. State(1894), 137 Ind. 240, 36 N.E. 1108, the defendant was found guilty of murder and sentenced to die.During the four-day trial jurors were permitted to separate during adjournments.After the second day of trial one juror became intoxicated for a two-hour period.The court, in ordering that a new trial be granted, said:

"It seems to be well settled in this State, as well as in other jurisdictions, that drinking intoxicating liquor during the recess of the court is not such misconduct of the jury as vitiates the verdict, unless the drinking is to such an extent as to produce intoxication; but where a juror drinks to such an extent as to become intoxicated, such conduct renders the verdict invalid, and the court, upon proof of such misconduct, should set it aside and grant a new trial."

Brown, 36 N.E.2d at 1108.(citations omitted)Though the juror did not appear intoxicated the following morning when the trial resumed, the court expressed its belief that the defendant"was entitled to have this juror consider and pass upon his case with faculties unimpaired by drunkenness during the progress of the trial."Id. at 1109.

We are here faced with a set of facts not previously addressed in the State of Indiana but we believe the rule we apply today follows from the law enunciated by our Supreme Court in the early cases, particularly Davis v. State(1871), 35 Ind. 496.What makes this case unique is the existence of a policy of the trial court permitting the consumption of alcoholic beverages by jurors during an evening meal after deliberations have begun.The trial court's complicity here, however, is not a factor as we hold a verdict is invalid per se if rendered by a jury which has consumed alcoholic beverages after deliberations have begun.³

This per se rule is necessary because of the impracticality of trying to determine how much a juror may have been influenced by the consumption of alcoholic beverages.The effect of alcohol on a juror's will cannot be as easily quantified, discounted or discovered as, for example, the effect of a possibly prejudicial magazine which was found in the jury room, Fox v. State (1984), Ind., 457 N.E.2d 1088; or the effect of an intimidating phone call to a juror, Rodriguez v. State(1979), 270 Ind. 613, 388 N.E.2d 493; or the effect of communications between a witness and several jurors, Buchanan v....