Willoughby v. City of Oklahoma City, 61917

• Decision Date: 23 July 1985
• Docket Number: No. 61917,61917
• Parties: Karen Sue WILLOUGHBY, Administratrix of the Estate of Charles Dwayne Willoughby, Deceased, Petitioner, v. The CITY OF OKLAHOMA CITY, a municipal corporation, et al., Respondent.
• Court: Oklahoma Supreme Court

Page 883

706 P.2d 883

1985 OK 64

Karen Sue WILLOUGHBY, Administratrix of the Estate of Charles Dwayne Willoughby, Deceased, Petitioner, v. The CITY OF OKLAHOMA CITY, a municipal corporation, et al.,

Respondent.

No. 61917.

Supreme Court of Oklahoma.

July 23, 1985.

As Corrected Aug. 2, 1985.

Rehearing Denied Oct. 16, 1985.

Robert N. McIlroy, and William E. Woodson, Norman, for petitioner.

Diane Davis Huckins, Asst. Mun. Counselor, City of Oklahoma City, Oklahoma City, for respondent.

HODGES, Justice.

We review by certiorari a certified interlocutory order, an order of the District Court of Oklahoma County sustaining a motion of The City of Oklahoma City (respondent) to quash subpoenas of certain jurors and Trial Judge William Kessler for the purpose that Karen Sue Willoughby, Administratrix of the Estate of Charles Dwayne Willoughby, deceased, (petitioner) was attempting to impeach a jury verdict by affidavits of such jurors and trial judge.

The central question presented herein is whether the jury verdict may be impeached and misconduct shown through the affidavits or testimony of the jurors or trial judge, a former district judge who had disqualified himself from presiding over further proceedings in said action, under 12 O.S.1981 §§ 2605 and 2606(B). We hold that it may and reverse.

Petitioner brought a wrongful death action against respondent after her husband, Charles Dwayne Willoughby, a plumber, died immediately after entering a water meter pit owned and maintained by respondent. A critical issue at trial related to the causation of the husband's death. Respondent denied petitioner's asserted theory of causation that the decomposition of organic materials at the bottom of the pit had caused the atmosphere inside the pit to become oxygen deficient and that the cause of her husband's death was suffocation. After one week of testimony by expert and lay witnesses, the jury returned a verdict in favor of respondent with a 9-3 vote.

The trial judge entered an order overruling petitioner's Motion for New Trial which has been appealed to this Court and has been stayed pending disposition in the district court of petitioner's Petition for New Trial After Term, from which this instant appeal by certified question arises. Subsequent to the overruling of her Motion for New Trial, petitioner filed a Petition for New Trial After Term pursuant to 12 O.S.1981 § 655 based on the alleged misconduct of the trial judge and juror. She contends that during the trial of the wrongful death case a certain juror, Cindy Gentry, asked the trial judge if she could conduct an independent investigation regarding a material issue relating to the decomposition of organic materials and the cause of decedent's death. The trial judge allegedly authorized her to do so as long as she did not visit the scene of death. Petitioner asserts that the juror sought and obtained opinions from experts and other witnesses and then related such findings, which concurred with respondent's expert's opinion, to the other jurors during deliberations. Attached to petitioner's petition are the affidavits of William E. Woodson, co-counsel for petitioner, and Eleanor Griffin, one of three jurors voting against respondent's verdict, supporting the alleged misconduct of the trial judge and Juror Gentry.

Petitioner attempted to obtain discovery depositions of the juror and judge involved, issuing and serving both deposition and trial subpoenas. Judge Kessler sustained respondent's Motion to Quash and Application for Protective Order relating to the deposition of Juror Gentry. Judge Kessler then disqualified himself and the matter was transferred to another district judge to consider the Motion to Reconsider which was thereafter denied. Respondent's Motion to Quash pertaining to Judge Kessler was also sustained. Judge Owens rendered the order upon review in this case on November 29, 1983, affirming the previous rulings sustaining respondent's Motions to Quash, effectively prohibiting petitioner from proceeding further in the district court on her Petition for New Trial After Term.

Petitioner's first proposition is 12 O.S.1981 § 2606(B) specifically authorizes jurors to testify when there are allegations of misconduct such as those made in this case. Section 2606(B) provides in relevant part as follows:

"Upon an inquiry into the validity of the verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes during deliberations. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror ..." (emphasis added).

Petitioner contends that the alleged juror misconduct herein falls within the proviso set forth in the second sentence of section 2606(B). She argues that the affidavits supporting the alleged misconduct show extraneous prejudicial information or improper outside influence and thus, such testimony or affidavits of jurors should be allowed.

Respondent argues in response that the Legislature in enacting the Oklahoma Evidence Code incorporated the then existing Oklahoma case law which prohibited the testimony of jurors to impeach verdicts unless a third party's affidavit or testimony is also submitted to the court without review or consideration of a juror's affidavit or testimony, and denominates this qualification as the "evidence aliunde rule." ¹ Fields v. Volkswagen of America, Inc., 555 P.2d 48, 59 (Okla.1976); Egan v. First Nat'l Bank of Tulsa, 67 Okl. 168, 169 P. 621 (1918).

The instant case presents a matter of first impression of the interpretation of the anti-impeachment rule under the Oklahoma Evidence Code. This Court is asked for the first time to determine whether, under 12 O.S.1981 § 2606(B), a juror is competent to testify regarding whether extraneous prejudicial information or outside influence was brought to bear upon a jury for the purpose of impeachment of the verdict, regardless of any testimony of an outside source.

Prior to the enactment of the Oklahoma Evidence Code in 1978, Oklahoma followed the majority rule prohibiting juror testimony for the purpose of impeachment of a jury verdict. ² The first sentence of section 2606(B) codifies this Court's long established precedents which follow the general rule of anti-impeachment. The Evidence Subcommittee's Note states that section 2606(B) "does not change Oklahoma law significantly. Jurors could not be heard as to matters forming the substance of their verdict." The Note further states: "They could be heard on whether extraneous prejudicial information or influence was improperly brought to bear upon a juror."

Respondent directs our attention to the cases cited in the Evidence Subcommittee's Note supporting the principle that a juror may be required to testify about extraneous, prejudicial information or influence improperly brought to bear upon a juror, to wit: Harrod v. Sanders, 137 Okl. 231, 278 P. 1102 (1929); Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233 (1916). Respondent asserts that Harrod was overruled in Wolff v. Oklahoma Ry. Co., 184 Okla. 374, 87 P.2d 671 (1939). He further asserts that Missouri, O. & G. Ry. Co. followed Carter State Bank v. Ross, 52 Okl. 642, 152 P. 1113 (1915) which was specifically overruled in Egan v. First Nat'l Bank of Tulsa, 67 Okl. 168, 169 P. 621 (1918). It contends, therefore, that a blanket prohibition is the current law in Oklahoma subject to the evidence aliunde rule, which permits juror testimony only when proof of the jury misconduct is made by witnesses other than the jurors.

We are urged by petitioner to re-examine and recognize an exception to the general prohibition to permit the testimony or affidavit of a juror pertaining to extraneous information as competent evidence to be used to impeach a verdict without the limitations of the aliunde rule in light of the enactment of the new Evidence Code. Regrettably, the Evidence Subcommittee's Note is apparently misleading in that it cites opinions of this Court which have subsequently been overruled in support of its representation of the state of the law in Oklahoma before enactment.

While we considered the case of Short v. Jones, 613 P.2d 452 (Okla.1980), after the enactment of the new Code, we did not address therein the anti-impeachment rule in view of the new provisions of § 2606(B). Short dealt with an asserted quotient verdict which we believe would not have fallen within the statutory exception to the general rule for the admissibility of juror testimony reflecting jury misconduct. ³ Consequently, the factual situation there did not present facts appropriate for us to address the new statutory exception embodied in subsection B of section 2606. We, therefore, look to federal civil cases which have interpreted the language of Federal Rule of Evidence 606, as the rule in Oklahoma is substantially similar to the federal rule. ⁴

Our attention is directed to the case of In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982). In this class action suit arising out of a fatal fire in a supper club where plaintiffs' theory was that the condition of the aluminum wiring caused the fire, a new trial was ordered where a juror had conducted experimentation on his own wiring and told at least six other jurors of the results which were different from plaintiffs' theory. The court's reasoning was that the juror considered evidence from an experiment which the parties did not have the opportunity to scrutinize or cross-examine. It concluded that, in effect, the juror's experiment injected extraneous information into the case. The court stated that Rule 606(b) of the...