Verren v. City of Pittsburg

• Decision Date: 01 March 1980
• Docket Number: No. 50080,50080
• Parties: Fred VERREN, Appellee, v. CITY OF PITTSBURG, Appellant.
• Court: Kansas Supreme Court

Page 36

607 P.2d 36

227 Kan. 259

Fred VERREN, Appellee, v. CITY OF PITTSBURG, Appellant.

No. 50080.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

On review of an opinion of the Court of Appeals affirming judgment of the district court in a personal injury suit under the comparative negligence law, K.S.A. 60-258a, the record is examined and it is held : The Court of Appeals erred in holding that evidence of jury misconduct proffered on a motion for new trial was inadmissible under K.S.A. 60-441 as attempting to impeach the verdict by inquiring into the personal mental processes of the jurors. As to all other issues raised the opinion of the Court of Appeals is affirmed.

Leigh C. Hudson, Pittsburg, argued the cause, and R. L. White, Pittsburg, was with him on the brief for appellant.

Timothy A. Short, Pittsburg, argued the cause, and Fred Spigarelli, Pittsburg, was with him on the brief for appellee.

FROMME, Justice:

A personal injury suit was brought against the city of Pittsburg by Fred Verren to recover for injuries suffered in a fall at a city park. Judgment was entered on a jury verdict. The Court of Appeals affirmed the judgment in an unpublished opinion. We reverse the judgment of the Court of Appeals and remand the case to the district court for further proceedings.

Now we consider the facts.

Mr. Verren and his four sons had gone to Lincoln Park. Two of the sons were playing in a ball game. Father and sons became separated. While looking for one of his spectator sons Mr. Verren came upon a large concrete slab in the park. He walked across the slab, stepped into a hole at the north edge and injured himself. He spent five weeks in a cast and several more weeks on crutches. The hole which caused his injuries was 12 to 14 inches deep. It had been there several years with knowledge of the city.

Suit was filed. Mr. Verren, as plaintiff, recovered a judgment for $5,600.00 against the city. The suit was under the comparative negligence law, K.S.A. 60-258a. The jury assessed the plaintiff's fault at 30% and the city's fault at 70%. The jury set the total amount of plaintiff's damage at $8,000.00. After deducting the 30%, or $2,400.00, as plaintiff's fault, judgment was entered by the court in favor of plaintiff for $5,600.00.

Defendant city filed a motion for new trial and in support of the motion charged jury misconduct and attached affidavits of two jurors to the motion. One affidavit stated:

"I served as juror in a case wherein Fred Verren sued the City of Pittsburg, Kansas; that the jury in its computation of damages specifically apportioned an amount included within its total amount of damages for plaintiff's attorney's fees; the jury in its computation of damages considered what percentage of fault would be attributed to the parties and then took this percentage into consideration in arriving at the damages to allow plaintiff a predetermined net recovery for his damages."

The second affidavit was almost identical in content and was signed by the foreman of the jury. When the motion for new trial came on for hearing plaintiff objected to the admission of the proposed testimony on the ground that it related to the mental processes of the jurors and was not admissible under our statutes. The trial court sustained the motion to exclude the evidence. A formal offer of proof was made. The motion for new trial was overruled. The statutes which govern are as follows:

"Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined." K.S.A. 60-441.

"This article shall not be construed to (a ) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441; . . . " K.S.A. 60-444(a ).

Under these statutes we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision. State v. Taylor, 212 Kan. 780, 512 P.2d 449 (1973). More recently in Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), it was pointed out that evidence is not admissible under K.S.A. 60-441 if it only pertains to the reasons a juror joined in the verdict. To be admissible the evidence must relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room.

It appears from the Kansas cases that the line of demarcation between what is and what is not admissible has been difficult to draw. After having considered the statutes, K.S.A. 60-441 and 60-444, Spencer A. Gard in 16 Kan.L.Rev. 125, 134 (1967), indicates that the statutes did not change the rules of evidence in this area which existed prior to the adoption of the civil code. So the general comment in VIII Wigmore on Evidence, § 2348, et seq., (McNaughton rev. 1961), would seem to be helpful. There it is stated that a jury is required to perform one legal act, which act is encompassed in its verdict. It is the verdict and not the prior intentions which is taken as exclusively constituting that act. For this reason evidence as to jurors' motives, beliefs, misunderstandings, intentions and the like are regarded as immaterial in any inquiry concerning the validity of a verdict. The verdict speaks for itself and all other such matters inure in the verdict. This rule is necessary to assure the finality of verdicts and to protect against the corruption of jurors after discharge.

On the other hand there are certain formalities of conduct which a jury is required to follow. Failure to obey these essential formalities of conduct can invalidate the verdict. Evidence may be offered in such cases to impeach a verdict when the evidence will show actions of the jurors by which they have intentionally disregarded the court's instructions or violated one or more of the essential formalities of proper jury conduct. See VIII Wigmore on Evidence, § 2348.

In Perry v. Bailey, 12 Kan. 539, Syl. P 3 (1874), this court holds:

"The general rule is, that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself, as, that a juror was improperly approached by a party, his agent, or attorney, or that the verdict was determined by lot; but not to show any matter which does essentially inhere in the verdict, as that the juror did not assent to the verdict, that he misunderstood the instructions, or the testimony, or any other matter resting alone in the juror's breast."

In Kincaid v. Wade, 196 Kan. 174, 178-179, 410 P.2d 333, 337 (1966), our court pointed out one of the reasons which compels us to have a rule against impeachment of a juror's verdict based on his or her mental processes, the reasoning by which he or she arrived at the verdict. In Kincaid it is stated:

"A verdict may not be impeached by (1) questions as to a juror's views conclusions, or (2) questions as to the reasons for those views factors determining conclusions, or (3) questions which reach what influences those views factors which influence the mental process in reaching such conclusion.

"It may be said that the mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict.

"Public policy forbids the questioning of a juror on the above entitled matters for a very obvious reason, i. e., there is no possible way to test the truth or veracity of the answers. In McDonald v. Pless, supra (238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300), while considering the right to inquire into a jury's basis for reaching a verdict it was suggested that to permit the inquiry

" ' " . . . would open the door to the most pernicious arts and tampering with jurors. " "The practice would be replete with dangerous consequences. " "It would lead to the grossest fraud and abuse" and "no...