Sprague v. Brown

• Decision Date: 07 June 1899
• Parties: SPRAGUE v. BROWN.
• Court: Rhode Island Supreme Court

43 A. 636

21 R.I. 329

SPRAGUE

v. BROWN.

Supreme Court of Rhode Island.

June 7, 1899.

Action by Phebe A. Sprague against Joseph H. Brown. Verdict for plaintiff, and defendant petitions for a new trial. Denied.

A. B. Crafts, for plaintiff.

S. W. K. Allen, for defendant.

TILLINGHAST, J. For such a gross and indecent assault as the defendant is proven to have committed upon the plaintiff in this case, we cannot say that the damages, assessed by the jury at $600, are clearly excessive.

The newly-discovered evidence, so called, is not of such a character as would be likely to change the verdict.

The fact that two of the jurors were not regularly drawn, or at any rate that the record in the town clerk's office of Westerly does not show that they were, is no ground for a new trial. The petition does not allege that plaintiff's counsel inquired as to the qualification of the jurors before going to trial and was misinformed, and we may therefore presume that he went to trial without making such inquiry; and it has been held by this court that, where a party goes to trial without such inquiry, he thereby waives the objection. Ryan v. Oswego Mills, 15 R. I. 480, 8 Atl. 246; State v. Cosgrove, 16 R. I. 411, 16 Atl. 900. Moreover, it does not appear that the two jurors who came from Westerly were disqualified to serve. All that appears, at most, is that, although summoned as jurors, they had not been regularly drawn. It is fair to presume, however, that, having been summoned to serve as jurors, and placed upon the list by the clerk of the court, they possessed the necessary qualifications. But, in any event, there is nothing to show that the defendant was in any way prejudiced by reason of the irregularity, and hence it constitutes no ground for a new trial. In Fiske v. Paine, 18 R. I. 632, 28 Atl. 1026, and 29 Atl. 498, this court held that the better reason was with that class of cases which hold that after full trial a verdict will not be disturbed, unless it appears from the circumstances of the case that some injustice has been done, by reason of a trifling interest, even, on the part of the juror, of which the complaining party did not know, and by reasonable diligence could not have known. See, also, State v. Congdon, 14 R. I. 458. In Wassum v. Feeney, 121 Mass. 93, it was held that, when a party has had an opportunity of challenge, no disqualification of a juror entitles him to a new trial after verdict. The same rule has been applied by other court...