Hinkel v. Oregon Chair Co.
156 P. 438
Or.
1916
Check Treatment

Lead Opinion

Mr. Justice Benson

delivered the opinion of the court.

1. Thеre are two points presented for our consideration: First, that the trial court erred in admitting the testimony of the witness Davison as to the experiments made by him and another with the same saw under the same conditions, and that no pieces were thrown up with sufficient force to do any injury. An *406examination of the testimony .shows that the conditions under which the experiments were made were practically identical with those under which the accident occurred, and therefore there was no error in admitting the evidence.

2, 3. The second contention is that alleged misconduct of the jury renders the verdict and judgment invalid, and entitles plaintiff to a new trial. The point was first raised in the lower court upon a motion for a new trial, liased upon the affidavits of plaintiff, his attorney, and three of the jurors. We dismiss at once the statements of plaintiff and his counsel, as they are necessarily based upon the information received by them from the jurors. Twо of the remaining affidavits recite certain statements which they allege that another juror made during the deliberations of the jury, in reference to the former injury of plaintiff and its possible еffect upon the present action. The third relates that there was a general discussion among the jurors as to the bearing of the former injury upon the latter. The verdict was unanimous. It is well еstablished in this state that the affidavit of a juror cannot be received to impeach the verdict. The matter is discussed and conclusively determined in the case of State v. Smith,, 43 Or. 109 (71 Pac. 973). Plaintiff contends, howеver, that the statements made by the juror in the jury-room stamp as false his answers upon voir dire, and that a verdict will be set aside when it appears that a juror upon his examination falsely states his knowledge, interest and position, or conceals a material fact, etc. Plaintiff, however, upon ‍‌​​​​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​​‌​​‌‌​​‌​​​‌​​‌‌​​‌​​​‌‌‍this point, meets again the fact that he must invade the secrecy of the jury-room fоr his evidence, which is not permitted; but if it were, the statements in the affidavits are not necessarily *407inconsistent with the truth of the juror’s answers upon his voir dire. It follows that the judgment should he affirmed ; and it is so ordered.

Messrs. Schmitt & Schmitt, for the petition. Messrs. Wilbur, Spencer & Beckett and Mr. F. C. Rowell, contra,. Department 1.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justicе McBride concur.



Rehearing

Denied May 16, 1916.

Petition for Rehearing.

(157 Pac. 789.)

Mr. Justice Burnett

delivered the opinion of the court.

In an earnest petition for rehearing the plaintiff urges us to hold that the affidavits of jurors are admissible in certain cases to overturn their verdict. The misconduct of which hе complains in this case is said to have resulted from a statement of a member of the jury in the deliberations of that body to the effect that he knew the plaintiff and was present and saw him injured some years previously, when he lost the sight of his right eye, and that the present litigation was a scheme on his part to get some money out of the defendant for the former injury, all notwithstanding the fаct that the juror had made statements under oath on his voir dire in substance that he did *408not know the plaintiff and had no bias or prejudice against him.

4, 5. It is indeed true that if the falsity of the juror’s testimony on his preliminary examination as to material matters is shown by competent evidence, a new trial should be granted at the motion of the losing party. The question to be determined is whether the affidavits ‍‌​​​​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​​‌​​‌‌​​‌​​​‌​​‌‌​​‌​​​‌‌‍of his fellow-jurors are сompetent to prove the occurrences in the secrecy of the jury-room as a means of showing the untruthfulness of the juror’s statements when being examined for his qualifications. In the petition for rehearing counsel rely strongly upon State v. Louth, 46 Or. 342 (80 Pac. 660, 114 Am. St. Rep. 873), and the precedents hereinafter noted. A reading of the Lauth Case discloses that the affidavits of jurors were not used to sustain the motion for a new trial. The voir dire examination of the juror was shown by an official stenographic report. The testimony relied upon to impeach his examination was afforded by the affidavits of a constable and one of counsel for the defendant. The affidavit of thе juror was considered in support of the verdict, but the case does not teach that his declaration under oath could have been used to defeat it. The principle is not direсtly discussed in Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59 (12 N. E. 98, 60 Am. Rep. 673); State v. Parker, 25 Wash. 405 (65 Pac. 776), is in point for the plaintiff’s contention but is not convincing in the light of the previous uniform holding of this court. In Hayne on New Trial and Appeal, Section 45 et seq., it is laid down as a rule of praсtice that if a juror be examined as to his qualifications and do not answer truly, a new trial will be granted; but in Section 73 of the same volume the author says:

*409“It is well settled in California that the affidavits of jurors cannot be received to impeach their verdict except in the case permitted by the statute.”

The exception refers to cases where a verdict is reached ‍‌​​​​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​​‌​​‌‌​​‌​​​‌​​‌‌​​‌​​​‌‌‍as the result of some chance device. As late as Spain v. Oregon-Washington R. & N. Co., 78 Or. 355 (153 Pac. 470), it is stated in the opinion by Mr. Justice McBride.

“Neither is it necessary to cite authorities to the effect that the affidavits of jurors will not be received to impeach suсh a verdict (meaning , a quotient verdict). The distinction attempted to be made by counsel between affidavits made by jurors where a unanimous verdict is required, and cases where the affidavits are made by nonconcurring jurors under statutes such as ours, where three fourths of the jurors may return a verdict, finds no support in the authorities. The rule is the same in either case.”

In Saltzman v. Sunset Telephone & Telegraph Co., 125 Cal. 501 (58 Pac. 169), discussing this question, Mr. Justice Temple used this language:

“The independence of the jury and the value of their discussions would be lessened if the reasons given by any juror for his opinions or for his verdict could be reported tо the court and criticised, and his motives impugned for remarks made in the jury-room. And such reports would be more likely to be made by dissenting jurors who had been heated by earnest debate and defеated by the final vote. But the independence of the jury would be gone if a perfectly correct report could be made and the verdict attacked by showing that some jurors mistook the evidence or the law, or were actuated by other considerations. There would be no freedom of discussion in the jury-room if they were subject to a possible censorship of this character. And the stability of judicial determinations would be as much imperiled by liability to attack by dissenting jurors as by the *410others. * * The main reasons, I think, are these two: (1) That the jnrors, who are practicаlly the only witnesses in regard to the matter, may not be tampered with and verdicts by these means imperiled; and (2) to secure independence and freedom from improper restraint on the part of the jury. ’ ’

Another case is Chicago, R. I. & P. Ry. Co. v. Brown (Okl.), 154 Pac. 1161, where the Oklahoma Supreme Court reviews the authorities and reaches the conclusion that the Circuit Court erred in admitting the evidence of the two jurors who did not sign it to impeach the verdict rendered. ‍‌​​​​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​​‌​​‌‌​​‌​​​‌​​‌‌​​‌​​​‌‌‍This decision was rendered February 1, 1916, and in our judgment contains sounder reasoning than an opinion announced by the same court in the preceding November which teaches a directly contrary doctrine: Carter State Bank v. Ross (Okl.), 152 Pac. 1113).

Counsel endeavors to draw a distinction between an act or statement of jurors inhering in the verdict and one not having that effect, making thе latter an exception to the general rule that the affidavits of jurors cannot be heard in attack upon their finding. It is urged that if this delinquency to be shown by the affidavit “inheres” in the verdict, the sworn declaration is not admissible. It is difficult to differentiate between matter which inheres in a verdict and that which does not. If it inheres, it must necessarily be an active agency in the production of the resultant verdict. To disclose it by the testimony of the jurors is to allow them to impeach their own oath-bound decision. If it does not inhere, it is negligible and not to be taken into account. The distinсtion about-inherency is illogical, because whether the subject matter of the affidavit does or does not inhere, the use to be made of it is to stultify the jury and to destroy *411their decision at thе behest of a recalcitrant minority. The principle is that while, the shortcomings of jurors of which the plaintiff complains are grounds for a new trial, yet public policy preserves the secrecy of the jury-room and the independence of jurors to such an extent that they are not competent to testify against their own verdict. Neither can a minority, having assented to the finding, afterward renew the contest concluded in the jury-room. If the misconduct can be established by other evidence, it is available for rehearing, but, lacking the proof which the pоlicy of the law, supported by the weight of authority, recognizes, the moving party must fail for want of testimony.

We are not called upon to answer categorically the socratic argument of the petition about corruption, fraud and other wrongful acts occurring in jury trials; but will dismiss the subject by the intimation that the danger of prosecution for perjury may possibly deter the dishonest juror from unlawful action. At best a jury trial or any other method of settling disputes in which human beings are concerned can never reach mathematical precision. Indeed, it has been said that on- all moral questions no one can be so absolutely in the right as to be able to say truthfully that his adversary is absolutely in the wrong. Impeded as we all are by the imperfections of humanity, we сannot expect that either courts or jurors can reach perfect exactitude in the trial of causes.. Approximation is the highest result attainable, and the wisdom of the greаt weight of authority, with the end in view that litigation should some time be terminated, has said that when an issue is committed to twelve men under the sanction of a solemn oath, those same triers will not *412be allowed to stultify themselves by affidavits contrary to their decision.

We adhere to the former opinion.

Former Opinion Approved.

Mr. Chief Justice Moore, Mr. Justice Benson ‍‌​​​​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​​‌​​‌‌​​‌​​​‌​​‌‌​​‌​​​‌‌‍and Mr. Justice McBride concur.