*1 Assembly disregard there. not is not We of the 61st General Laws in inter- clear mandate of the constitution an statute. updating of old rewording and legislature. preting the intent anything that criminal does make It it was sense legal. In that previously was apply only conclusions herein XI.Our however, little This, provides not new. 710.12, what now section Code of prosecution. The section for the comfort way chapter in no reflect on as a legislature by the treated of 1966. Code specif- The old statute mere revision. one substituted. and remanded and a new case is reversed with ically repealed to sustain defendant’s motion in directions suf- latest consideration IX. Our judgment charge. arrest and dismiss the statute ficiency a criminal of the title to and remanded de- Reversed supra, directions. Hygiene, v. Social State February reviewed 1968. We cided concur, STUART, except All J., Justices re- not be review need That authorities. part. who takes no con- under original act peated here. The Sup- “An Act to its title had as sideration upheld the acts. We
press” enumerated disap- We
constitutionality of the act. Chenoweth,
proved language State that there was supra, and held
quoted ap- penalty reference
requirement that legislature. act
pear in title to an void completely a title did not hold that We In Matter of the ESTATE of Ernest prohibited any to acts reference CORY, C. Deceased. was sufficient. CORY, Plaintiff-Appellee, V. Melville us is the Act before X. title of prohibited that or act silent as to BANK, Ankeny, ANKENY STATE prosecution. criminal might lead as Executor the Last Will and Testa meet consti- particular it fails to Deceased, Cory, ment Ernest C. Edith pre- requirements. even Not Cory, Gladys Spring, tutional Cory, D. Albert All Unknown Claimants constitutionality in Persons All sumptions in favor Claiming any Right, Unknown Title or indulge enough to show which we Interest, However Described in and to 710.12, subject section Code where the the Estate of Which the Said Ernest C. title” “expressed in the of 1966 Cory Seized, Defendants, Died legislature. passed Act as Cory, Gladys Spring Edith and Albert D. Cory, Defendants-Appellants. with reluctance this conclusion reach think preposterous to it because would 53306. No. knowingly created legislature Supreme Court of Iowa. repealed an law old criminal or our void July How- invalid one. statute enacted Sept. Rehearing Denied ever, many pronouncements as say is written subject constitution our expressed
proscribe “not enactments
title.” to the conclusion
Regardless of our monu- enacting a legislature
intent of law our commercial revision of
mental read legislate power to our not within that are words Act title of
into the *3 Trout, Moines,
Coppola ap- Des & for pellants.
Smedal, Ames, Brewer, Maurer & Herrick, Ankeny, E. Feight, Charles Moines, Harris, for Langdon, Belin & Des appellee.
MOORE, Justice. is a contest will case. The will be- ing January was dated 18, 1965 contested County Polk filed June probate for district court. It was admitted peti- filed his 1965. Contestant June probate tion to set aside and contest will on 2, 1965. November alleged testamentary lack Contestant capacity grounds undue influence as The court denying validity the will. testamentary withdrew the issue of lack of capacity but undue submitted issue determination. The contestant returned verdict for probate admitting order was can- her Mrs. testified she visited Spring appeal Proponents celled. error through father alleging Iowa four times overruling years. motion for a directed their Her last in Iowa was in 1948. visit evidentiary proce- verdict and various Her her some father visited in California affirm. dural errors. We visit eight nine times. last On Gladys stayed Ernest Edith case, true with The record days days. and with Albert ten seven contests, set most will is voluminous. We all of leaving In 1956testator made a will only so much the evidence as forth wife, Edna, if she to his then estate the is- necessary understanding to a fair him, predeceased Edna survived him. If sues. go provided the entire the will estate was *4 Melville; predeceased if Melville to his son testator, Cory, born The Ernest C. was in for Melville’s the estate left trust was 16, 1881, May March died had and children, grandchildren. While testator’s life- three times his during been married helped his son Edna testator married to in Cory, married to Nellie time. He was setting and by giving him a home Melville The her in 1917. and divorced from Ankeny, in up in business him the hardware two and couple lived in Oklahoma to store, gave which he later (testator’s Cory children, Gladys Cory and Albert Elkhart). Melville, inwas in defendants-proponents Spring, and couple were divorced this action. very Edna. Testator was close his wife to Elkhart, In 1921 Iowa. returned to both her his After death were made by efforts Cali- moved to children and the two Nellie provide housekeeper to a for son Melville Nellie there since. lived and have fornia testator but this effort failed. died in 1945. that at testified about Various witnesses loss testator showed evidence of this time and Cory Edna married Ernest In 1917 memory, and lack some confusion later in An- and in Elkhart her lived with grasp in of current events. interest and September she died keny, Iowa until perfectly normal. he was testified Others child, Melville couple had one 1963. This petition signed testator a July On action. in this Cory, plaintiff-contestant V. asking his guardianship voluntary for a for hardware business in the was Testator Melville, son, appointed guardian. in 1945. retired years. He agree- to a trust also reference There was prepared after ment said to have been married 7, 1965 Ernest November On but before remarry decided to Ernest he when his wife was Cory. She Edith agree- No such marriage performed. this in defendant-proponent a and is died ment, ante- produced in An evidence. action. signed and prepared nuptial agreement was Noyember and Edith Gladys moved Ernest on Albert and Although in mother, they were with their California proponents’ first turn I. We time. time to father from their touch with review verdict and for a directed motions in in his father Albert visited favorable light most the evidence in Albert was and 1964. In Pro contestant, 344(f)2, Rules Civil rule for to California father and drove his assigned errors first Proponents’ and cedure. father lived his Albert a visit. verdict to direct a failure relate to in 1917 wife, a winter Edna, for the second and failure evidence contestant’s twice close of father saw his He also or 1918. evi all close at the direct a verdict times California Arizona and six to assignments consider dence. We 1965. On right trial court gether. If the the will executed father date his latter immaterial it is final motion ruling question.
«41 except that would re- ruling. property the wife right in the first it was whether 562, 139 estate he from Ernest’s Smith, ceive flat $2500 Smith for each year plus died within $1000 citations. stayed year parties married he lived and all find from reasonably could Cory, up Edith to a maximum of $5000. wife’s after second the evidence that his widow, agreement Ernest’s contended this lonely Cory awas Ernest death was made at insistence. Melville’s begin- faculties man whose mental age and new wife Edith went degree Ernest due slip to some ning marriage. shortly their of California after evidence There was arteriosclerosis. Cory they were there Albert con- gen- While memory, some confusion loss of Mathon, lawyer, arranged tacted Mr. eral deterioration. making purpose an interview Testator lived alone for a little over length and Mathon testified at will. Mr. year after death. He visited his son Edna’s Bauch, by a Mr. being contacted told frequently Melville also visited selling acquaintance who had been of his neighbors. During the 1963-64 winter of many Cory’swife for to Albert merchandise he to a spot went motel vacation in Texas represent or Mathon did years. Mr. as had been his past custom for the fifteen Corys. When Albert or know *5 years. The owner her of the and motel man was an old potential testator told the employee both testified noticed contested, he ar- might will and the change in Ernest wife after his died. evaluation for an interview and ranged During stay he became and homesick re- This Brandt, psychologist. a local Dr. unhappy. operator The motel sent for Mel- was com- that testator opinion an sulted in ville to come Texas take him home. to to lawyer the the evaluation petent. After Nord, physician Dr. a friend testator’s and Edith, of presence the Ernest in interviewed Melville, of to also went Texas. Dr. Nord wife. The Albert’s Josphine, and Albert acquaintance length testified to his lawyer and to leave asked relatives were during years, with Ernest and Edna earlier of Part private. testator interviewed his observation testator and various of to taped. these interviews specific evidencing incidents deterioration his taped talk with private in his Testator after Edna’s death. He testified decedent to a disinclination expressed lawyer clearly coronary and arteriosclerosis died of to go back could until he will another make artery express disease. He was asked to something and do his find other opinions competency both as Ernest’s co-signed he had $10,000note about an- susceptibility His influence. did testator interview theAt Melville. previously stated swers were: think I “I will, draw the Mr. Mathon order thought general his was that I demeanor lawyer wanted what he told the although he that progressive such loss of his mental drawn. to be one was years in the will acuity period over of several specific I make no claim that impressed on times lawyer several The his designated lost of time he length im- making a will desirability Ernest the competency. I think the efficiency Mr. imply do not mediately. We gradually I think that will mind decreased. propri- the bounds beyond went Mathon * * Cory Mr. my opinion, be all. *. testator, Nevertheless, after ety.- susceptible to the influence been very has re- lawyer, strong recommendation trying others no matter who was 83- drawn. the will to order fused him.” influence home Albert’s then went to year-old man ordered day the will next and the entered Testator wife had third who as to silent The record days drawn. agreement three antenuptial into lawyer told him phoned the actually marriage which before their under will. preparation go with ahead the other’s make claim on spouses would lawyer prepared the will and support for- the finding that the delivery Cory by special warded it to Mr. will was the result of undue influence.” place letter. Albert Execution took Proponents’ motion for a directed verdict Edith, Al- Cory’s presence home in the at the close of all the evidence was success- bert, persons. and other his wife Judith ful toas incompetence issue of but the Albert, Stevens, step-daughter acted as issue of undue influence was submitted to witnesses, notary all o'f public. Three jury. The court correct in both Cory’s for Albert wife whom either worked instances. employees, her or were married one of will was will. The executed witnessed the applicable rules are conven kept lawyer it until returned to iently gathered Roberts, in In re Estate After Ernest death. notified of Ernest’s 880, 888, 889, to Iowa no mention and Edith returned 730, as follows: “Undue influence must be made of will. such as to substitute the person will of the exercising the quoted taped Much could be from the re- testator, thereby writing making ex cording lawyer’s interview which press, purpose and intent beneficial to each only note side. We two testator, but person that of the exercis quotations. At point Ernest said: ing the operate influence. It must at the “Bert (Albert) brought up here something very time the will is executed and said, night. last you He don’t divide why (Citations). factor. dominating ways point four ?” At discussing another premarital Melville, re- troubles “The elements which present must be antenuptial agreement, sulting in Ernest justify submission of a case to a be- following: exchanged Mr. Mathon cause of undue influence are: (1) per- *6 “Cory: enough. Mathon: I think that’s son be unquestionably subject to in- undue enough Cory: That’s she her? All fluence, (2) opportunity to such exercise Cory: asked for. Mathon: All right. influence and wrongful effect purpose, only That is she don’t ask for it. I mean disposition a (3) to influence unduly for * * * * * * that’s what sh Mathon: purpose improper of procuring an favor story. All right, now. So the whole that’s (4) and clearly appearing result to be your simple is very That’s a will the effect of undue (Citations). influence. desire.” proof required. “Direct is not Undue position Contestant states his in the by influence be usually proven and is 83, following decedent, manner: “Where circumstantial (Citations). evidence. California, executed the in miles 2000 evidence, however, must disclose than more home and his the will was a to justify scintilla submission to jury. prepared by attorney, whom he had (Citations). met, by never and employed who had been decedent’s of son wife two months his *****
by marriage a whom had testamentary capacity former he “On issue of 47 upon had no for more than the burden close contact is contestants lack to show years; capacity respects: and where decedent is shown to of mental one these of (1) have at three times refused to author- least to understand the nature the instru- of will; preparation executing, ize the of ment he is to (2) know presence wit- of his will was executed understand the nature and extent of employees the son’s property nesses who were of ob- (3) to remember the natural wife, daughter jects bounty and notarized of (4) of his to know wife; son’s executed will was If distribution he desires to make. lawyer of kept capacity equal thereafter and retained mental to California, ample to will. there was evidence these tests he cannot make a valid 627, Proponents complain the trial of Iowa Rogers, Estate of In re allowing prior will and Springer, court’s action 818; In re Estate N.W.2d pleaded and antenuptial agreement to be 380; Lund Hart v. 1220, N.W.2d Iowa They we contend And introduced in evidence. Iowa by, 258 validity question will in should not substantial must there be often said validity order questions be clouded with as to the unsoundness mental evidence of prior wills, Cocklin, mental of In re citing Proof of question. generate very validity to the Iowa Here the applicable N.W. 864. be deficiency prior neither the will nor the ante- making the will.” time nuptial questioned. agreement being large- each case rules Within above Cory The fact Mrs. entitled Here facts. own ly determined estate, statutory her share of testator’s due evi- circumstantial was sufficient there hold agreement, relevant antenuptial Undue question. generate dence disposition proponents’ as it related to ordinarily not exercised influence unduly influence testator. Similar distinc direct only rarely It is view. public recognized tions in In re Estate of In available. operation is of its evidence Kenny, 10 N.W.2d 51, 105 Iowa Ramsey, 252 re Estate 75; 879, 882, Fridley, Storbeck Busick, 191 659; re In Will of A.L.R. Anno. 82 815, 818. 182N.W. properly The documents were admitted. Telsrow, 237 re Estate II. In “The states: complain Proponents further IV. in a will contest of undue influence
issue on their restriction cross- undue testa- separated from that of be cannot Cory relation examination Melville V. might which mentary capacity. Conduct and introduction identification unduly person insufficient to antenuptial agreement. find might sufficient strength mental normal ruling limiting the in the trial court’s abuse mind. One upon operate failing scope of cross-examination. sus- more mentally weak is infirm not. than one who is ceptible to influence admit execution pleadings Ensminger, re Estate by Ernest and Edith antenuptial agreement cited; 68 and cases N.W. pointed C.J. marriage. As Cory prior to their *7 767, 438.” being ques- validity § not supra, out tioned. of the issue mean not this does But a will must competency to make lack of objections sustaining contestant’s undue whenever to the submitted be propounded on cross-exam- questions in which cross-examination, Cases submitted. influence proper ination compe of the issue trial court withdrew his testi- “I believe stated: trial court are undue tency but submitted only signature.” mony identified Soderland, 239 of In re Will common. record so discloses. 128, 131; Hansen 569,575, N.W.2d Iowa 304, 316, 21 N.W.2d 237 Iowa Waugh, v. Highway Iowa State In Trachta v. 762, 768, and citations. 849, Comm., 86 N.W.2d 249 Iowa party a has no say: “Generally opin- 859, we of first divisions III. The two except as a right to cross-examine witness thirty- dispose proponents’ ion several of of in direct exam and matters stated to facts prolifera- eight assignments error. * * recognize that also ination. has it difficult assignments tion made given be must considerable latitude real We shall treat the matters merit. what is relevant determining trial court assignments in or- remaining treat the being considered.” permit. issue record will derly manner as the pertaining holdings Our are numerous conduct claim prejudicial constituted scope and extent of cross-examina error. The first jurors talking matter concerns one largely tion trial court’s within the Likewise, just to two witnesses the corridor discretion. cross-examination out- side the courtroom limited about which door. This was ob- to matters by attorneys served proponents’ exam witness has been examined direct turn discussed the with v. incident contest- ination. Central Fibre Products Co. ant’s 384, 390, attorneys. Proponents’ attorneys Lorenz, 246 Iowa Inc., chose to McGrevey, make no record thereof until Hope Ted after v. 369, 370; the verdict then exceptions N.W.2d a bill of 1038, 1045, which Anderson, any part made claim Pond v. no case Nolte, 372,376; Connelly been mentioned. Counter affidavits clearly show the conversation limited what rates one the witnesses and hus- 393, page Witnesses § charging operation band were C.J.S. prevail generally states: “Under Donna, their motel in Texas. rule, ing where a witness is called party particular formal as to some or Assuming arguendo proponents point only, adversary is not entitled timely made juror’s record im generally.” examine him proper conduct talking to two wit nesses, it is our conclusion the facts dis Am.Jur., Witnesses, section page closed justify do not holding our the re rule, states: “Under the American fusal trial new court was letters, merely identify called witness an abuse of discretion necessitating the statements, or instruments other granting of a new trial. cross-examined regarding other matters in issue in the cause.” City In Dakovich v. of Des Assuming arguendo the trial court had Moines,
some scope discretion as to the cross- quote approval this from witness, examination of the Melville V. Foedisch Chicago Ry. Co., & N. W. Cory, we find holding that dis- basis 69 N.W. 1056: “A cretion was abused. verdict will not be merely set aside because juror has, in violation duty, of his sworn The record improper nothing discloses talked persons about the case. It must prejudicial in the trial rulings court’s appear that the misconduct was such as to during cross-examination of Melville V. materially affect the right substantial Cory. complaining party. (Citing cases.)” Here Proponents V. complain also undue case was not mentioned in the conver restriction of cross-examination other *8 sation. witnesses, Cory. including proponent Edith opinion by will not this extend de- Dudley, 645, State v. 147 Iowa 126 analysis tailed complaints. of these 812, We N.W. we held the fact one of the considerably observe the court jurors has more spoke to the prosecutrix during discretion in this area case, because the witness rape the of a simply passing the was available to the cross-examiner as a time day, prejudicial of was not to de- friendly importance witness. The fendant. proof order of in this area is examined To similar effect see McNider Fisher, v. in Evidence, McCormick on sections 23 523, 526, 527, 197 647, Iowa 197 N.W. and 29. 649; Foster, State v. 527, 532, 136 Iowa By VI. exceptions, bill of supported by 36, 38; 114 N.W. Olds, State v. 106 Iowa affidavits, proponents 110, showed 119, three matters 644, 76 N.W. 647.
845
appear
it
jurors
of
basis of misconduct
concerns
complaint
second
to,
is
and it
misconduct was calculated
jury
allowing
action
the court’s
did,
reasonably
it
influence the
probable
case
separated overnight after
he
Pipe-
Mid-America
verdict. Townsend v.
it. This court
finally
been
submitted
30,
May
Co., Iowa,
filed
N.W.2d
line
trial court
severely criticized
has
763,
6, 1969; Fordyce Cappel,
Iowa
v.
kept in con
jury has been
whenever the
Scott,
664,
765,
665;
v.
Mead
133 N.W.2d
unduly
night,
at
late
session
tinuous
644;
641,
1285, 1290,
Iowa
130 N.W.2d
entire
throughout the
even in some cases
1346,
912, Hackaday
Brackelsburg,
v.
Hoeppner, 258 Iowa
night. Kracht v.
1350,
517;
514,
Mongar v.
85 N.W.2d
Customarily,
judicial
9th
Inc. v. Iowa State Scott, supra; charge jury 293,299; The third v. VII. Mead 156N.W.2d Co., ex bill of R. misconduct asserted v. Illinois Central Harden 325; (subse ceptions jurors that one of the during the trial Com. quently foreman) named Fort Des Moines Hutchinson v. dictionary procured Servs., definitions Slater, influence” 567, 571; and “undue
words “undue” Bashford during room Turner brought them into read. Hansen, deliberation where cited authorities. “Mis- of the article
The first sentence Iowa”, 10 Jury Jury Members Books conduct of The annotation “Use process is: “In pages Review Room”, Drake Law A.L.R.2d may do verdict, raising members reaching few cases “There are states: things.” them many discussed, unconventional strange and and most question herein dictionary. agreement with Experience dictates jury’s use have involved cases, many from other cases A review Although observation. these few by jurors question shows a desire jurisdictions disposed which the courts of com- meaning dictionary manner, some con- investigate summary reveal in a monly not unusual. conflict used words is principle, most flict in *9 jurisdic- only. Most of result question upon the passed have tions which considered have often We basis, implied often proceed more trial should a new whether question of the com- prejudice to that expressed, than jurors. of misconduct granted because presumed but party plaining is on the a new justify In order to affirmatively appear require order to “The definition of words our stand- trial, justify a reversal or a new ard a dictionaries taken as matter of that the cases it been knowledge, jury sup- most' has common which the found * *” posed prejudice (Em- possess. resulted. There is nothing phasis indicate added) jury did not give full effect to the definition of ‘undue influence’ previously presented been We have not legal by a given judge term in his by the question with the of whether use charge.” strongly supports This case jury dictionary a or definitions there- ruling of the trial court here. requires a trial. granting new In the case bar the bill of exceptions problem in however considered the have juror procured shows a during trial dic- regard books or to unauthorized use of tionary definitions of “undue” and “u'ndue pamphlets by jurors during deliberation. influence” and jury later in the room dur- Barnard, supra, Mongar In v. ing deliberations read them to other 765, held use in the jurors compared with the jury pamphlet publish- ten-page room of definition given of undue influence as ed entitled the state bar association They court’s instructions. were not iden- Jury” require “You’re on the did not tical. dictionary There is no showing the granting a new trial. definitions jurors’ were different than the common knowledge of the terms. Pfiester, Fagen supra, In Elevator 244 Iowa in- which presumed It is obeyed accident, volved a we af- motor vehicle Grande, court’s instructions. Rancho Inc. grant firm the trial refusal court’s v. Iowa Highway Comm., Iowa, State appeared jurors new trial where 293, 299; Beal v. Iowa State book, copies printed had at of a least two Comm., Highway “The Iowa Drivers’ Guide” issued N.W. and citations. There is no department public safety, state indication here the give did not full jurors certain examined and read aloud consideration to give'n the definitions from the At page books. the court’s instructions. page N.W.2d, we said: “The sit- The record before support us does not uation here is somewhat like that where finding prejudicial jury misconduct and jurors dictionary during consult a their de- a holding the trial court abused his dis- been held not to liberations. has re- cretion in refusing to grant a new trial. quire a new trial. 66 Trial New C.J.S. 58 d (1), page Am.Jur., New § VIII. Another complaint proponents Trial, 84, page 98.” § inasmuch as the court directed a verdict in Gladys favor of Spring holding Dulaney Barnes, 218 Ala. as a matter of unduly law she did not in- grounds So. a will contest on the testator, fluence upheld will should be influence, jurors undue secured Web- as to They her. cite In re Estate of Elementary Dictionary ster’s School Ankeny, during their had before them deliberations in which “See, also, we state: the definitions of undue influence and 69 A.L.R. text, sup- which the So., confidential. page At ported by many authorities, states: ‘The Alabama Supreme Court states: “Such authorities, with but exceptions, sup- few incident, rule, ground as a for new port general proposition parts appear trial if it does not that the matter enforceable, held valid prejudice character to the un- notwithstanding the fact parts that other party. successful been affected undue influence and invalid; provided, however, that *10 and Exhibits C-7 jected so and separable, are parts affected so excluded. this court intelligible certified to complete and not been D-9 have will remains the ” in- We cannot copied into the record. or in itself.’ re- on predicated telligently consider error to us. exhibits not available jection of prin recognized such We here is raised matter ciples but this appoint- application for Exclusion the Proponents treated first time. prejudicial error guardian ment of pleadings, wholly bad good as made. under the record court proofs The arguments. object to failure of Proponents XI. treatment. such on the basis of instructed requested instructions give three court to the issue. raise Proponents now cannot 7,3, giving of instructions Eiker, In re Estate complaints both have considered and We 9. 325. suf- given carefully. instructions through XIV X IX. In Divisions by propo- ficiently points raised cover in list proponents some their briefs requested instructions their both in nents prejudicial contend stances wherein the instruc- objections to their record and in of evidence admission error occurred error on find no given. tions as errors The claimed of contestant. basis. briefly argued. lumped together and is shown. error No reversible have examined parties deference to care. We ruling with objection each Affirmed. one, were within rulings, find all save LARSON, GARFIELD, J., and C. ruling sound, judicial discretion court’s STUART, JJ., concur. SNELL and Corporation on evidence. See Olsen 426, 60 Melleray, New RAWLINGS, JJ., dissent. BECKER and on Page and citations: LeGRAND, join in JJ., MASON 29.115, 29.123; Wills, 40 A.L.R. sections the dissent. division II of 2d
BECKER, Justice. mentioned, exception is the respectfully dissent. I referred hypothetical question which short autopsy report. Nord referred to an Dr. majority’s disagree with the Í. IWhile report autopsy over of an contents on cross-exami- of Division IV treatment testimony timely objection was not nation, important disagreement is not autopsy report was best No evidence. a dissent. enough to occasion prior or sub admitted in evidence and disagreement lies real area of II. The sequent specifically evidence showed exceptions VII. The bill in Division autopsy report “affected said sclerosis trial one during the adequately shows that so preju brain”. This error was not named fore- jurors (subsequently require trial. dicial as new dictionary definitions man) procured objec- single ruling The court’s on influence” and “undue “undue” the words 622.4, Code, tion based section during jury room brought them into proper. dictionary definition deliberations. The com- at least twice read to the term pared legal definition of Proponents exhibits
X. offered in- in the court’s given as was (a certificate), letter) and (aD-8 death C-7 dictionary defini- structions. While voluntary (petition appointment of D-3 procured not set forth tions were ob- evidence but all guardian) into talking juror on two occasions. was seen witnesses This was the same *11 record, inescapable: two conclusions are way error had not By occurred. of illustra- first, dictionary was definition different tion we said: “The here is some- situation court, two, given by from that as jurors what like that where consult dic- “ * ** by the foreman affidavit stated: tionary during their deliberations. This has set one Instructions cast require been held not to a new trial. 66 forth greater plaintiff burden on the than New Trial 58 d (1), page § C.J.S. Jury had themselves to the Am.Jur., Trial, New 98.” page § confined defini- tion set as the dictionary.” (Em- forth Corpus Secundum citation also Juris phasis added.) notes a case where dic- consultation Mongar tionary Barnard, prejudicial v. held to constitute 82 N. “ W.2d ‘In states: order to misconduct. matter This has since been ex- justify a new trial on haustively the basis miscon reviewed in an annotation at 54 jurors duct appear it Jury misconduct A.L.R.2d Use of Room. Books in to, was calculated it reasonably prob and is Most books used were dictionaries. did, able verdict.’ v. Krieg are substantially split prej- cases Grant, 396, 405, 248 Iowa effect alleged udicial of such misconduct. Pfiester, Fagen by part See also v. As Elevator noted the annotator at least divergence may a split be traced to authority citations.” pre- as whether such conduct is sumptively prejudicial or whether such con- exceptions The bill of and affidavits on affirmatively duct must be shown which the motion a new trial is based complaining party prejudicial. to be essentially matter show which does not verdict; inhere but how these ex- court presumed prejudice has not jurors’ traneous affected matters vote similar cases but has examined what has may not be considered.2 Harden v. Illinois occurred and determined it whether is rea Company, Central Railroad probable sonably prejudice Ran occurred. 343, 112N.W.2d 324. Given the facts as to Grande, Highway cho Inc. v. Iowa State happened, what it trial is for the court to Comm., Iowa. determine whether claimed misconduct dictionary, aWhere which was not ad- to, reasonably probably was calculated evidence, mitted in given jury did, influence the verdict. Bashford v. court, ap- officer the Illinois Slater, N.W.2d 904. The pellate Bass, Ill.App.2d court in Gertz trial court has considerable discretion in “* * 113,115, 208 N.E.2d 116 said: determining whether the is of such conduct dictionary contained definitions of require stature as to a new trial. This dis- terms which were essential a decision is not unlimited cretion and this court has case, substantially dif- which reversed remanded new when legal ferent from the technical definitions stopping showing chart of auto- distances jury properly of those terms which improperly mobiles was taken into the apply arriving their ver- instructed jurors. room Harden Ill- dict. Railway, supra. inois Central Fagan Pfiester, Elevator v. case, “In this we believe that the error we considered clear, danger prejudice copies case where two of the Iowa Driver’s great proof prejudice and that the of actual Guide were the jury found in room after Although is difficult. we have direct prejudicial verdict was returned. We held way knowing what ac- record majority’s 2. Thus the sentence: “There is fair. Such evidence immaterial give no indication here did not tends sistently show matters we have con- given full consideration to the definitions held to inhere in the verdict. highly in the court’s instruction.” un- simplified English dictionary the use of a dictionary what use was made tual *12 explicate principles had, to established law cannot may use have effect expressed language approved only as our it defendants agree with the beyond scope the courts is avowed of such con jury pure speculation that the use, misguidance a work and in such definitions dictionary obtain to sulted the probable. more than is rea the case. It of the crucial words jury the from the fact to infer sonable dictionary, that the specifically requested judge “It the trial to ex- duty is the determining the volume they made use of pound afford jury to the and to the law the crucial terms meaning of the attorneys litigants opportunity the an the the thereby prejudice the influenced to register instructions and to hear the to Will, 18
plaintiffs.”
re
Accord: In Collins’
exceptions
to
instructions considered
v. Bar
A.2d
Daniels
N.J.Misc.
duty
jury
It
the
be erroneous.
to
ker,
416,
concepts our that order did, If the probably verdict. influence the business. dangerous a difficult calculated to legal extraneous definition when difficulty is accentuated juror why explain concepts verdict did profession attempts Why understandable, dictionary? did yet copy it out laymen in it ? jurors the other process he show or read correct, language. The legally used. of the terms definitions must include affidavit of of- For me least the great spend me to It makes little sense to part juror the second fending answers definitions, instructions, including effort on e., reasonably prob- it inquiry; i. juror to sub- and then allow officious “ * * * ably did influence verdict. that of dictionary stitute a definition In- (definition) set forth the court. greater burden on structions cast them- than inquire plaintiff whether the we do In Iowa confined fact, forth did, definition set in- selves to the juror misconduct added.) I think inquiry dictionary.” (Emphasis jury. matter fluence the reasonably con- probable, (1) necessarily questions and answers involves definitions, ac- such (2) respect sidered both In this that inhere the verdict. deci- improperly influence their cited tion did our that of Alabama law differs from a new trial on grant would sion. I majority. ground. law is closer to that of New Our case Will,
Jersey. re See In Collins’ RAWLINGS, J., this dissent. joins in N.J. 98, 100-101, which is Misc. 15 A.2d LeGRAND, directly JJ„ join in di- case. The contra to Alabama MASON “ * * Assuredly, of this dissent. said: vision II Circuit Court