Stone v. Griffin Baking Co. of Greensboro

• Decision Date: 02 May 1962
• Docket Number: No. 460,460
• Citation: 257 N.C. 103,125 S.E.2d 363
• Parties: George David STONE, Administrator of the Estate of Graham Otis Stone, Deceased, v. GRIFFIN BAKING COMPANY OF GREENSBORO, Incorporated.
• Court: North Carolina Supreme Court

Page 363

125 S.E.2d 363

257 N.C. 103

George David STONE, Administrator of the Estate of Graham Otis Stone, Deceased, v. GRIFFIN BAKING COMPANY OF GREENSBORO, Incorporated.

No. 460

Supreme Court of North Carolina.

May 2, 1962

Henry M. Whitesides, Gastonia, for plaintiff appellant.

William Joslin and Samuel H. Johnson, Raleigh, for defendant appellee.

PARKER, Justice.

Plaintiff has one assignment of error, and that is to the denial by the court of his motion made at the September 1961 Term, before the judgment was signed, to examine the juror Robert M. Davis and to set aside the verdict and order a new trial, and to the judgment entered at that term, and to the order entered at the subsequent October 1961 Term denying his motion to set aside the verdict and order a new trial, because of the misconduct of the juror Davis.

The granting or denial of a motion for a new trial because of the misconduct of a juror is generally regarded as resting in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion, or as sometimes stated, unless it is clearly erroneous. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1; Annotation 64 A.L.R.2d sec. 14, p. 185 et seq., where many cases from many jurisdictions are cited; 39 Am.Jur., New Trial, sec. 101, Contact between third person and juror.

The discretion with which a trial court is vested, when applied to a court of justice, means, as Lord Mansfield said, 'sound discretion guided by law.' Rex. v. Wilkes, 4 Burr. 2527, 98 English Reports, Full Reprint, 327, 334; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910.

'It is firmly established in this state that jurors will not be allowed to attack or to overthrow their verdicts, nor will evidence from them be received for such purpose.' McCabe Lumber Co. v. Beaufort County Lumber Co., 187 N.C. 417, 121 S.E. 755. 'The rule is a salutary one. If it were otherwise, every verdict would be subject to impeachment.' In re Will of Hall, supra, 252 N.C. page 88, 113 S.E.2d page 13.

Judge Hall was correct in denying plaintiff's motion at the September 1961 Term to examine the juror Davis. Certainly, Judge Hall's denial of his motion to examine other persons in respect to the alleged misconduct of the juror Davis did not prejudice plaintiff, for the simple reason that plaintiff did not even know who the witnesses were he wanted to examine. Further, Judge Hall did not abuse his discretion in denying plaintiff's motion made at the September 1961 Term for a new trial for the alleged misconduct of the juror Davis, because plaintiff offered no supporting affidavits or other evidence as to the alleged misconduct of the juror Davis, or that he was in any way prejudiced by the alleged misconduct of the juror Davis. Judge Hall's judgment at the September 1961 Term is affirmed.

The judgment entered by Judge Hall at the September 1961 Term was a final one, from which plaintiff appealed to the Supreme Court. This appeal from the final judgment eo instante took the case out of the jurisdiction of the Superior Court. There was no withdrawal of the appeal by plaintiff, therefore, Judge Hall at the subsequent October 1961 Term was functus officio to consider the motion made by plaintiff at that term for a new trial because of the alleged misconduct of the juror Davis, and his order made at that term is a nullity. Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384; Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Strong's N.C. Index, Vol. 1, Appeal and Error, sec. 12. See Purcell v. Southern R. R. Co., 119 N.C. 728, 737, 26 S.E. 161.

However, while we must hold that Judge Hall's order entered at the October 1961 Term is a nullity, we will nevertheless, as was done in Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, 'exercise our discretionary power to express an opinion upon the question which the plaintiff attempts to raise' by his appeal from Judge Hall's order rendered at the subsequent October 1961 Term denying his motion for a new trial for the alleged misconduct of the juror Davis.

This is said in 39 Am.Jur., New Trial, sec. 101:

'The rule sustained by the great weight of authority is that a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to...