Veazie v. Columbia & N. R. R. Co.

Decision Date08 April 1924
Citation224 P. 1094,111 Or. 1
PartiesVEAZIE ET AL. v. COLUMBIA & N. R. R. CO.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by A. L. Veazie and others against the Columbia & Nehalem River Railway Company. From an order allowing plaintiffs a new trial, defendant appeals. Affirmed.

This is an appeal from an order of the circuit court allowing plaintiffs a new trial in an action brought by them to recover attorney's fees. The complaint alleged that $20,000 was the reasonable value of the services rendered and the defendant admitted an indebtedness in the sum of $2,500 and tendered that sum to the plaintiffs. The facts upon which the new trial was granted are concisely stated in a memorandum made by the trial judge, which we here reproduce:

"The plaintiffs have moved for a new trial on the ground of alleged misconduct of a juror and on account of certain rulings of the court and its refusal to give certain proposed instructions to the jury. Juror Warner [Wagner] had asked several questions and interrupted counsel several times during the trial. During an interval in the course of the trial he asked defendant's counsel that certain evidence be produced. This incident was promptly and properly reported to the court and to opposing counsel. The evidence requestd was inadmissible, and the incident was permitted to pass without comment. During the final argument by plaintiffs' counsel and while he was discussing the evidence of one of the witnesses for plaintiffs, the same juror raised his hand in a deprecating manner and said in effect, 'Don't talk to me about N.M. and L. [ [plaintiffs' witnesses]. [They] are so crooked they could not lie straight in bed.' My attention was momentarily diverted and I did not clearly understand the remark of the juror, but it was evidently clearly understood by the other jurors. Counsel for plaintiffs did not move to have the jury discharged. Counsel was visibly surprised and embarrassed by these remarks, and after a brief hesitation proceeded with the argument. He was placed in a difficult situation, where he had to decide promptly. The jury returned a verdict for plaintiffs in the amount that had been tendered to them before trial. There was an instruction that a verdict would have to be returned in that amount at least.

"Every suitor is entitled to have his cause submitted to a fair and impartial jury for decision. Remarks of this juror were reprehensible in the extreme, and clearly indicate that he did not appreciate the serious duty imposed upon him by his oath. Before the cause was submitted he announced his conviction, at a public hearing, concerning the character of two witnesses, whose character was not otherwise impeached by the evidence. He attempted to testify as a juror that these witnesses were not worthy of belief and that he would not consider their evidence. A juror should not be permitted to flout the testimony at a public hearing and declare that witnesses are so crooked that they could not lie straight in bed. He said that counsel should not talk to him about these witnesses. That means by plainest implication that he would not consider their evidence. It is also an open declaration that they were crooked witnesses. If this outburst had been understood by the court, it would have been its duty, in my opinion, to have dismissed the jury. That would have meant a new trial of the cause.

"I am persuaded that plaintiffs did not have that fair and impartial trial contemplated by the law, and that the effect of this remark was such as to prejudice the testimony of these witnesses with the other jurors. It is, however, not necessary for the court to speculate upon the probable effect of these remarks. They are entitled to a fair consideration upon the part of the entire jury, and a consideration of all the evidence introduced. A juror who makes an open declaration of his feelings while the cause is in progress cannot be expected to change his view after he goes into deliberation. It is human nature that one will be more inclined to cling to his expressed open declarations than that he will be persuaded by any statement by other persons.

"It only remains to consider whether advantage should have been taken of this remark at the time by counsel moving to dismiss the jury or requesting the court to instruct the jury in reference to the outburst by this juror. I am of the impression that any instruction would have been unavailing so far as this juror was concerned. If he were rebuked, it would probably only harden his mind on the question. There are expressions by the supreme court of this state to the effect that objections to rulings and procedings should be taken at the time, and that the parties...

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10 cases
  • Johnson v. Ladd
    • United States
    • Oregon Supreme Court
    • July 18, 1933
    ... ... Marshfield, 89 Or. 401, 174 P. 138; Duniway v. Hadley, 91 Or. 343, 178 P. 942; Veazie v. Columbia, etc., R. R. Co., 111 Or. 1, 224 P. 1094. It is obvious that we cannot logically hold that we have the right, when no error has been ... ...
  • State v. Ramoz
    • United States
    • Oregon Supreme Court
    • March 17, 2021
    ...v. Herman , [213 Or. 140, 322 P.2d 119 (1958)], State v. Bosch , 139 Or. 150, 154, 7 P.2d 554 [(1932)] ; Veazie [et al. ] v. Columbia [etc. R.R. Co. ], 111 Or. 1, 224 P. 1094 (1924) ], yet the rule is that when a party having knowledge of an error or an irregularity during the trial fails t......
  • Van Lom v. Schneiderman
    • United States
    • Oregon Supreme Court
    • September 27, 1949
    ...court, or abuse of discretion, by which such party was prevented from having a fair trial;" In the case of Veazie et al. v. Columbia & Nehalem River R.R. Co., 111 Or. 1, 224 P. 1094, it was held that Article VII, Section 3 has made no change in that subsection of the statute. Subsection 1 i......
  • Strandholm v. General Const. Co.
    • United States
    • Oregon Supreme Court
    • June 12, 1963
    ...conflict with the majority opinion in the Fischer case. One of the more interesting cases on this subject is Veazie et al. v. Columbia, etc., R. R. Co., 1924, 111 Or. 1, 224 P. 1094. The opinion by Chief Justice McBride, quotes from a memorandum made by the trial judge. The latter relates '......
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