Wright v. Union Pac. R. Co.

• Decision Date: 10 September 1900
• Court: Utah Supreme Court
• Parties: WILLARD A. WRIGHT v. UNION PACIFIC RAILROAD COMPANY

62 P. 317

22 Utah 338

WILLARD A. WRIGHT v. UNION PACIFIC RAILROAD COMPANY

Supreme Court of Utah

September 10, 1900

Appeal from the Second District Court Weber County. Hon. H. H Rolapp, Judge.

Action by plaintiff to recover damages for personal injuries alleged to have been inflicted through the negligence of defendant company. From a judgment for plaintiff, defendant appealed.

Reversed and remanded.

Le Grand Young, Esq., and A. W. Agee, Esq., for appellant.

The statute (Sec. 3291), provides that "whenever one or more of the jurors have been induced to assent to any * * * verdict, * * * by a resort to the determination of chance such misconduct may be proven by the affidavit of any one of the jurors."

An assent to a verdict by a resort to chance not to a previous agreement, is what is prohibited. Thompson on Trials, Sec 2602; Ruble v. McDonald, 7 Iowa, 90; Johnson v. Hubbard, 22 Kan. 277. See, also, Ill. Cen. R. Co. v. Able, 159 Ill. 133.

These decisions do not rest upon any statutory provisions. But, as we have said, our statute expressly provided that if the assent of one juror is obtained by a resort to chance, the verdict is vitiated. Proudfit did assent to the quotient obtained as the verdict, and he says he did this because he had agreed to do so. It can make no difference that his understanding differed from that of others, he understood that all had agreed to do that, and felt bound by the agreement. The verdict was therefore vicious and should have been set aside. Dixon v. Plums, (Cal.) 33 P. 268; Ditch Co. v. Adam, (Colo.) 28 P. 662; Flood v. McClure, (Idaho) 32 P. 254; Giffen v. City (Idaho), 55 P. 545; Driver v. State, (Texas) 38 S.W. 1020; White v. State, (Texas) 40 S.W. 783; Southern R. Co. v. Williams, (Ala.) 21 So. Rep. 328.

Messrs. Richards and Allison, for respondent.

It is erroneously claimed that the verdict was a gambling or chance verdict. The facts as shown by the affidavits of five of the eight jurors in the case do not bear out any such suggestion, but clearly establish the contrary to be the fact.

The only question involved in this point is this: Was any one or more of the jurors induced to assent to the verdict, by a resort to the determination of chance? If so, a new trial could have have been granted. If not, the determination of the trial court was proper.

Whether any juror was so induced to assent is a question of fact for the court to investigate (by proofs) and determine, and the facts so determined cannot be reviewed by this court, especially as it was determined upon evidence more or less conflicting. Nelson v. Southern Pacific Co., 15 Utah 328-329; Mangum v. Mining Co., 15 Utah 551; Dixon v. Pluns, Cal., 35 P. 1030-1031; Same v. Same, Cal., 33 P. 268; Wamberg v. Somps, Cal., 33 P. 341; Pawnee, etc. Co. v. Adams, Colo., 28 P. 662; Village, etc., v. Crawford, Neb. 37 N.W. 609; Parshall v. Railway Co., 35 F. 649.

And to sustain such a verdict but little evidence is required. Pawnee, etc. Co. v. Adams; 12 Enc. Pl. & Pr. 552, 559; Colo. 28 P. 663.

BASKIN, J. BARTCH, C. J., and MINER, J., concur.

OPINION

BASKIN, J.

Six of the eight jurors in this case returned a verdict in favor of the respondent for $ 6,242.50, and a judgment for that sum with costs was rendered against the appellant in favor of respondent. The appellant moved for a new trial. Two of the grounds of the motion were as follows:

1. "That the verdict was obtained by resorting to chance."

2. "That the verdict is excessive."

The trial court ordered "that a new trial be granted unless within ten days the plaintiff shall reduce and remit the verdict to the sum of $ 4,000; and upon such remission within the time limited herein being made by plaintiff the motion for a new trial shall be and is hereby overruled."

Within the time limited the plaintiff, by his attorneys, in open court, remitted all of the verdict above $ 4,000.00, and reduced the judgment to that sum. The defendant duly excepted and appealed from the final judgment.

It appears from the affidavits of the respective parties to the action, read at the hearing of the motion, that of the eight jurors two of them opposed finding any verdict whatever for the respondent; that the other six having concurred in finding for the respondent, but after numerous trials having failed to agree upon the amount of the damages, "it was proposed by one of the jurors that each juror should write on a slip of paper the amount he favored assessing as damages, and that all such amounts should be added together and divided by six, the number of the agreeing jurors. This was agreed to and accordingly done. One of the dissenting jurors preserved the slips, and by exhibits made them a part of his affidavit. The respective amounts written on each slip was as follows: $ 7,500, $ 10,000, $ 3,000, $ 7,955, $ 1,000, and $ 8,000. The sum of these amounts is $ 37,455, which divided by six gives a quotient of $ 6,242.50, the amount named in the verdict. Both of the parties concede the existence of the foregoing facts, but five of the six jurors, in an affidavit made by them, severally aver that while the foregoing agreement was made and carried out as hereinbefore stated, no agreement was made that the quotient, whatever it might be, should be the measure of plaintiff's damages, and a verdict for that amount returned; that it was agreed and was the understanding of the six jurors that no juror should feel bound to accept or agree to the amount so arrived at as the verdict in the case, but should feel perfectly free to advocate any other amount.

On the other hand, three of the jurors, one of whom, A. J. Proudfit, was one of the six jurors who signed and returned the verdict, as positively aver in their separate affidavits that it was agreed and so understood that the amount so arrived at should be assessed as damages, and a verdict returned accordingly. A. J. Proudfit, in an affidavit, counter to that made by the other five jurors who joined with him in the verdict, deposed, as follows:

"Affiant says that as far as he was concerned, he heard nothing whatever said to the effect that no juror should be bound to accept or agree to the amount found by the addition and division described in his former affidavit, nor was there any agreement that each juror should feel free to advocate or favor any other amount, after such amount had been ascertained as aforesaid. On the contrary, before any ballot was taken, each juror agreed to abide by the result of such addition and division. With that understanding, affiant agreed to sign the verdict believing in good faith in the agreement made before the ballot was taken."

The addition and division referred to in this counter affidavit was stated by affiant in his former affidavit, as follows "Before any ballot had been taken, it was agreed between all of said agreeing jurors that the verdict should be arrived at in the following manner: Each one of said jurors should write on a slip of paper the amount which he thought plaintiff ought to recover, and then...