Taylor v. Garnett

• Decision Date: 05 April 1887
• Citation: 110 Ind. 287,11 N.E. 309
• Parties: Taylor and others v. Garnett.
• Court: Indiana Supreme Court

110 Ind. 287

11 N.E. 309

Taylor and others

v.Garnett.

Supreme Court of Indiana.

April 5, 1887.

Appeal from circuit court, Elkhart county.Baker & Baker, for appellants. Johnson & Herr, for appellee.

ZOLLARS, J.

Appellants purchased from appellee his interest in a brush factory, including the outstanding claims for goods sold. They claim that he fraudulently made misrepresentations as to the amount of such claims, and that they have suffered loss by reason thereof. They brought this action to recover damages. Upon the trial of the cause it was material for the jury to ascertain and determine what representations, if any, were made by appellee in relation to such outstanding claims. Upon that question the testimony of appellants and appellee is at variance. The testimony of a witness, Simmons, was offered, in corroboration of the testimony of appellee, as to what representations were made by him. There was no attempt to impeach the witness generally, but it is claimed that his testimony was weakened, and that he was in a measure impeached, in that his statements as to the place where the negotiations between appellants and appellee occurred, were contradicted by the testimony of appellee and other witnesses, etc.

One of the causes assigned for a new trial by appellants is the alleged misconduct of the jury. In support of that cause in the motions, appellants offered the affidavits of several of the jurors to the effect that during the deliberations of the jury, while the credibility of Simmons was under consideration, another of the jurors stated, in the hearing of the jury, that he had known Simmons ever since he came to Goshen; that he was a sober, industrious, and truthful man; he believed that he would not swear to what was not true; that there was not a preacher in Goshen he would sooner believe; and that he had always considered Simmons to be an honest man.

Can such affidavits of jurors be received to impeach and overthrow their verdict? That is the question for decision. Appellants' counsel maintain that they may be so received. Their position, briefly stated, is that, in support of a motion for a new trial based upon the alleged misconduct of the jury, the affidavits of jurors may be received as to all matters lying outside of the personal consciousness of the individual juror; that while the affidavit of a juror will not be received to show the impressions, thoughts, motives, understanding, influence, course of reasoning, or other matters resting alone in the heart of the juror, which led him to assent to a verdict, for the purpose of impeaching that verdict, yet his affidavit may properly be received for the purpose of overthrowing a verdict to which he has assented, if it relates to overt acts,-matters of sight and hearing,-because, as to such matters, the affidavit may be contradicted by the affidavits of the other jurors, if untrue. In support of that position they cite us to the cases of Crawford v. State, 2 Yerg. 60;Hudson v. State, 9 Yerg. 408;Wright v. Illinois & M. Tel. Co., 20 Iowa, 195;Cowles v. Chicago R. I. & P. R. Co., 32 Iowa, 515;Perry v. Bailey, 12 Kan. 544. The cases cited support the position of appellants' counsel; and while there is plausibility and force in the reasoning of counsel, and of the courts which rendered the decisions in the above cases, we are not convinced that this court should now follow those cases, and depart from the general rule sanctioned by the courts of England, by this court heretofore, and, so far as we are advised, by the highest courts of all the states where there are not special statutes, with the exception of the states from which the above cases are cited. There are special statutes in Arkansas, Texas, and California permitting testimony of jurors to be introduced on a motion for a new trial, to show that the verdict was made by lot, etc. Those statutes, however, being in derogation of the common law, have been strictly construed, at least in California. Turner v. Tuolumne, etc., Co., 25 Cal. 397; Thomp. & M. Jur. § 454. Formerly the Code of Iowa contained a provision that, in applications for new trials, the affidavits of jurors might be taken and used in relation to such applications. That provision was omitted from subsequent revisions, and was not in force when the cases cited from that state were decided; but it is not entirely certain that the cases decided when it was in force, and with reference to it, did not have some influence with the court in the rendition of the later decisions.

In Baylies on New Trials and Appeals, at page 543, citing many authorities in support of the text, the general rule, in the absence of statutes, is stated as follows: “Affidavits of jurors are not received, upon a motion for a new trial, for the purpose of impeaching their verdicts by showing error or mistake in respect to the merits, or by showing their own misconduct, or that of their fellows, or by showing that the misconduct of others affected their verdict.” In Thompson and Merriman on Juries, at section 440, it is said: “Upon grounds of public policy, the courts have almost universally agreed upon the rule that no affidavits, depositions, or other sworn statement by a juror will be received to impeach the verdict, or to explain it; to show on what grounds it was rendered, * * * or that they agreed to the verdict by average or by lot. * * * It has been attempted to show by evidence of this kind * * * that the foreman of the jury, after they had retired, had gone from the jury-room in order to learn from persons not of the jury the amount of damages which ought to be found in order to carry costs; that the jurors making affidavit were influenced in their verdict by information given by one of the jurors in the jury-room. But in those and other like cases the courts have steadily refused to listen to such affidavits.” A large number of cases sustaining the several propositions are cited in the foot-notes, among which are cases decided by this court.

Our cases fully sustain the general doctrine above stated, and extend it to overt acts on the part of jurors.

In the case of Drummond v. Leslie, 5 Blackf. 453, affidavits of persons other than jurors were produced, to the effect that they had heard the jurors...