83 P. 466 | Utah | 1905
This action was brought hy the plaintiff to recover damages for personal injuries which he alleges were inflicted upon him willfully and maliciously by the defendant Pord, act
It is insisted that the verdict of the jury was the result of a resort to the determination of chance, and, to support this contention, the appellants have filed an affidavit of one of the jurors. In that affidavit, B. Soloman, the affiant, states in substance, that, upon the jury retiring to consider their verdict, each juror cast a “ballot for the amount which he considered to be correct from the evidence”; that then one of the jurors proposed “that they add up the several amounts,” and divide the total by eight, the number of ju
This court, in Pence v. Mining Co., 27 Utah 378, 75 Pac. 934, commenting upon section 3292, Rev. St. 1898, of tbe
“The ‘determination of chance,’ however, to have such effect must have been the means of inducing one or more jurors to assent to the verdict. It follows that the mere fact that the jury in a given case, may, during their deliberations have resorted to chance to obtain an average sum, will not vitiate their verdict, if, notwithstanding such sum, they thereafter continue to deliberate in good faith, and finally arrive at their verdict as a result of fair and honest deliberation, free of any inducement from the resort to chance. The burden of proof to show that the assent of one or more jurors was obtained to the verdict by the determination of chance or that it was in fact a chance verdict, is upon him who assails the verdict.” (Archibald v. Kolitz, 26 Utah 226, 72 Pac. 935; Dorr v. Fenno, 12 Pick. 521; Bailey v. Beck, 21 Kan. 462; Hunt v. Elliott, 77 Cal. 588, 20 Pac. 132.)
Tbe decided preponderance of proof in tbis case is in favor of tbe validity of tbe verdict, and tbe presumption that tbe jury acted fairly and did their duty has not been overthrown. Tbe contention of tbe appellant, therefore, that tbe jury were guilty of such misconduct as rendered their action void cannot prevail.
We find no reversible error in tbe record. Tbe judgment is affirmed, with cost.