File No. 8094. | S.D. | Nov 24, 1937
[1, 2] This case was tried to a jury. A verdict was returned for the defendant and plaintiff moved for a new trial on the ground of misconduct of two of the jurors. The motion was supported by affidavits setting out specific acts of misconduct, from which affidavits it appears that the alleged misconduct was not known to plaintiff or his attorneys until after the trial. The jurors involved filed counter affidavits, but it was the province of the trial court to decide which of the affidavits were true. The court specifically found that:
"* * * the juror, Roy McFarland, was possessed of knowledge of certain facts in this case and knew considerable about it and that he had an opinion in regard to the merits prior to the time he was examined on his voir dire, which prevented him from being a fair and impartial juror, and that during the examination of said juror he made no reference to having any knowledge of *547 the facts in this case or knowing anything about it; and the court is of the further opinion that the juror, Henry Grafing, was guilty of misconduct in talking with outsiders in regard to this case during the time it was being tried and before it was submitted to such jury, and that such misconduct on the part of the aforesaid jurors prejudicially affected the plaintiff and was unfavorable to the plaintiff and vitiated the verdict subsequently returned by the jury.
"That upon the whole record, which has been carefully considered by the court, and in the interests of justice a new trial should be granted the plaintiff."
We believe the court was justified in granting a new trial.
The order appealed from is affirmed.
All the Judges concur, except WARREN, J., not sitting.