Carnaghan v. Ward

8 Nev. 30 | Nev. | 1872

By the Court,

Lewis, C. J.:

The appellants endeavor, first, to maintain that there was an illegal separation of the jury in this case which entitles them to have the verdict vacated. The facts upon which this assignment of error rests are, that after the jury had retired to deliberate upon the verdict, one of the jurors found it absolutely necessary to leave the jury-room for a few moments, and did so, simply going to the rear of the courthouse however, and returning immediately. If it be admitted that the showing made by the affidavits of the appellants would, unexplained or unanswered, constitute such separation as would justify the court in setting aside the verdict, it certainly could not be so considered where, as in this case, the respondents show that during the separation complained of the juror had no intercourse or conversation with any one respecting the trial. It is a familiar rule of practice, with perhaps some exceptions, that an irregularity which is shown could not have prejudiced^ the losing party, will not justify an interference with the verdict. When,therefore, it is shown, as it was in this case by the respondents, that there was nothing connected with the separation which could in the least prejudice the (appellants, there is no ground for disturbing the verdict and judgment. Such is the rule very generally followed by the courts. See cases cited in 2 Graham and Waterman on New Trials, 534, et seq.

One of the attorneys for the respondents, seeing the juror leave the court-house, supposed that a verdict had been agreed upon, and inquired of the juror if such were the case, and was answered in the negative. The respondents show that not another word passed between the parties at this time, and that this conversation took place in the presence of two disinterested witnesses, and was clearly inadvertent. .'The second point relied on is, that this was error; it was evidently not. This could not be said to be a conversation concerning the case, and it was beyond the range of possibility that it could have prejudiced the appellants, and, therefore, will not authorize a setting aside of the verdict.

It appears that when the juror was returning to the jury-room, again seeing the attorney whom he had seen upon going out, he requested him to send some person for a bottle of liniment which was prepared for him at a certain drug store in the town, and which he wished to use, as he was quite lame and suffering much pain. The. attorney replied that he would do so, and nothing further passed between them. The liniment was sent for and passed to the juror by the officer in charge. This, it is argued, is such' an extension of favor to the juror by the attorney of the prevailing-party, as to vitiate the verdict under the rule announced in the case of The Sacramento and Meredith Mining Company v. Showers, 6 Nev. 291.

It was held in that case, that the treating of the jury by 'the prevailing party with spirituous liquor would vitiate the verdict. The act in that case was volunteered, and was entirely uncalled for by any rule of civility or propriety. The law, as there laid down, is sustained by a very strong current of decisions, and is recommended by the strongest considerations of policy and prudence. But there is nothing in that case which even intimates that the parties to a suit must disregard the simple dictates of humanity, or refuse to discharge the commonest duties imposed upon them by the laws of God and morality alike. To refuse to perform so slight an act to relieve the sufferings of a juror would be a clear disregard of the plainest duty, which no circumstances can justify, and which the law does not demand. There is a marked distinction between the performance of a mere act of humanity or duty for a juror, as in this case, and the voluntary offer of civilities which neither duty, charity, nor the conventionalities of society require of a man. And this is the distinction between the case of the Sacramento Company v. Showers and the case at bar. The compliance with the request of the juror was not such act as should vitiate the verdict.

The judgment must be affirmed. It is so ordered.

Gárber, J., having been of counsel in the court below, did not sit in this case.