75 P. 482 | Kan. | 1904
The opinion of the court was delivered by
The defendant in error was plaintiff below. His action was for the recovery of damages to a pasture field by a fire set out by defendant’s locomotive. He had judgment, which plaintiff in error seeks now to reverse. The first claim of error is that plaintiff was guilty of misconduct in connection with the jury. During the introduction of defendant’s evidence the court said:
“I think we will take a recess here, and I will send the jury out to view the premises again. I sent the jury yesterday to view only a part of the farm; I think I was in error in that. Mr. Bowman has carriages here, and I will let the jury go and see the entire farm.”
The carriages were procured at a livery-stable owned by one of the jurors, and the misconduct suggested is in two particulars : (1) The first time the
The purity of the jury trial cannot be too safely guarded. It is the theory, and should be the practice as nearly as it is possible, considering human infirmities, that a juror to whom the issues arising between litigants are submitted should be unprejudiced and without the least inducement, save that disclosed in the evidence, to influence his verdict. This is required not only as a safeguard to the individual litigant’s rights, but as a matter of public policy. The latter consideration is perhaps much greater than the former, for, when confidence in the incorruptibility and impartiality of juries is destroyed, our social and judicial fabric is vastly weakened. Courts should not tolerate the slightest suspicion of improper conduct on the part of a litigant tending to corrupt or improperly to influence a jury. This principle is well established and should never be overlooked. Its application, however, must be determined by the circumstances of each case.
In this case it seems that a more extended view was to be taken by the jury on its second trip than on the first, so that it w;as much more convenient, if not necessary, to have conveyances for them. It appears from the affidavit of the plaintiff that he had frequently used livery teams during a number of years prior to this time ; that he had procured them at the livery-stable owned by the juror; that monthly bills
In Vane et al. v. City of Evanston, 150 Ill. 616, 37 N. E. 904, the prevailing party furnished a lunch at a hotel, and it was shown that this luncheon was ' without cost or charge to the jurors, and, as one of them who made an affidavit understood it, was to be -paid for by the prevailing party. On the counter-showing it was made to appear that the jury could not return to their usual quarters in time to get their usual dinner and that the arrangement was made at the suggestion of the court. The court concluded that it did not affirmatively appear that the successful party was guilty of any intentional wrong, and in laying down the rule said :
“It does not, however, follow, that customary offices of civility, and .ordinary hospitality or courtesy,
In Gale agt. New York Central & Hudson R. R. Co., 58 How. Pr. 385, the facts of the alleged misconduct were that during a recess of the court one of the jurors, desiring to return home, asked permission of the plaintiff to ride with him. To this the plaintiff consented and they rode together for some distance along with one of the plaintiff’s witnesses. It was shown that the case on trial was not spoken of or discussed. Relative to the matter the court said :
“If the plaintiff, with a view of influencing the juror by placing him under obligations to him, had sought this opportunity so to do, a new trial would be granted. In such a case the court should see that an attempt had been made to improperly influence, and it would not stop to inquire whether the wicked effort had or had not been successful, but would assume that the party had, at least partly succeeded in that which he attempted.
“When, however, the court is satisfied that there has been no attempt by the successful party to unduly influence a juror, either by conversation, or by placing him under obligations, and that his action has not in fact been improperly influenced, then, even though the act may have been indiscreet, the court will not disturb the verdict.”
In Hilton v. Southwick, 17 Me. 303, 35 Am. Dec. 253, the prevailing party, in going to his home, conveyed in his own wagon one of the jury who lived in the same direction. No conversation relating to the cause took place between them, and the act seemed to be one of neighborly kindness not out of the ordinary course, and done without any purpose to influence the
In Gale v. Railroad Company, supra, the court, in commenting upon the Hilton case, remarked:
“The principle upon which the verdict in Hilton agt. Southwick was sustained — that the act done was not an officious one thrust by the prevailing party upon the juror for the purpose of procuring his good will, and thus influencing action, but it was the result of neighborly courtesy and kindness, without any evil intent whatever, is not only sound in reason, but it and similar reasons have frequently guided and controlled the judgments of courts.”
See, also,-the cases announcing the same principle cited in the above-quoted cases; and also Ford v. Holmes, 61 Gra. 419; Central Railroad Company v. Wiggins, 91 id. 208, 18 S. E. 187.
We have been cited to many discussions where intoxicating liquors have been given or tendered as a treat to jurors. The tendency of the courts seems to be, and perhaps properly so, to view this practice with much more suspicion than the ordinary civilities due from one person to another, and these cases can hardly be accepted as determinative or aptly illustrative of the question in hand. We think that the practice in respect to the matter under discussion ought to be very carefully guarded by trial courts, but are inclined to the view that in this case neither a wrong purpose on the part of the plaintiff nor culpable bias on the part of
It is further claimed that conversation was had or remai’ks were made by the plaintiff in the presence of the jury while they were viewing the premises.' This, however, was denied by the plaintiff and the sheriff, and the conclusion of the trial court upon this disputed question is conclusive.
Some . four other assignments of error were presented. We have given them all very careful consideration and find no material error in them, and conclude that no general good will be accomplished by their specific discussion.
The judgment of the lower court will be affirmed.