| Me. | Oct 29, 1914
In this action of replevin of a calf, a verdict was rendered for the plaintiff and the case is now here upon a motion for new trial reported in accordance with the provisions of R. S., Chap. 84, Sec. 53. It appears from the printed record that the maternity of the calf was an important element in determining the question of title at the trial. The Justice presiding had excluded evidence instituting a comparison between the calf and the cow alleged by plaintiff to be its dam. Subsequently and before verdict rendered, one of the jurors engaged in the trial of the cause w'ent to the house of plaintiff and, denying to the plaintiff that he was connected with the Court in any way, was permitted to examine the calf and the cow so alleged to be its dam. The defendant did not learn of the action of the juror until after the rendition of verdict when he promptly filed his motion for new trial. It is not apparent that the juror in question mentioned his visit to the house of plaintiff to his fellows.
Subject to objection of defendant, the juror was permitted, with grave doubt on the part of the Court, to state that his examination and comparison of calf and alleged dam did not influence his decision in any manner. The objection was well taken. As said in Harrington v. Worcester &c. Railway, 157 Mass., 579" court="Mass." date_filed="1893-01-05" href="https://app.midpage.ai/document/harrington-v-worcester-leicester--spencer-street-railway-co-6424407?utm_source=webapp" opinion_id="6424407">157 Mass., 579, 581, “a juryman may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his mind.” And in the same case it is remarked that the question of fact in such a case as the present is not whether the mind of the juror was influenced, but whether his act might have influenced his mind, or was of such a nature as to have any tendency to influence it. See also Newell v. Ayer, 32 Maine, 334; Clark v. Lebanon, 63 Maine, 393, 395; Trafton v. Pitts, 73 Maine, 408; Heffron v. Gallupe, 55 Maine, 563, 566; State v. Hascall, 6 N. H., 352, 361, 363.
The question therefore is whether or not the action of the juror might have influenced his mind or was of such a nature as to have any tendency to influence it. It is not a violent presumption that evidence received by jurors or remarks made to them, out of Court, or views without order of Court, more or less, affect jurors: Cilley v. Bulett, 19 N. H., 312, 324; Bradbury v. Cony, 62 Maine, 223, 227.
Motion sustained.
New trial granted.