In this action for battery the jury returned a verdict in favor of the defendants. Seven days later plaintiff moved for a new trial on the ground that “[o]ne of defendants’ witnesses- communicated with members of the jury concerning the merits of the case.” ①
Plaintiff’s affidavit in support of her motion states:
“* * * * Mr. Reid [defendants’ witness] was walking in the middlе of the group and I heard him say in a loud voice: ‘This woman is crazy and she should be put away. She beat a woman with a crowbar and a hammer and she won that case. Now she is trying to win this case. This is too much, too much.’ I was about eight feet away from Mr. Reid when he said it. Mr. Reid was walking with the jurors and spectators to *578 ward the elevators at the time. I don’t know how the jurors could have helped but hear him. * * *”
The affidavit of Anna Straughn, one of plaintiff’s witnesses, was to the same effect.
The trial court received testimony on plaintiff’s motion. Nothing was еlicited from that testimony that did not appear in plaintiff’s affidavit except the testimony of defendants’ witness. One of defendants’ witnesses controverted the statement of plaintiff by stating no jurors were present when Mr. Reid allegedly made his statement.
The trial court denied plaintiff’s motion, and plaintiff appeals.
In denying plaintiff’s motion after having heard testimony thereon, the trial court stated:
“These juries, and this one in particular, was clearly аnd explicitly instructed to decide the case solely on the evidence that was hеard in the courtroom. There is nothing in this record to indicate (1) that, in fact, a juror or jurors did hеar what Mr. Reid said, if he said it. And there is additionally nothing in the record whatsoever to show that if they did hear it, that they considered it at all in reaching their verdict; in other words, that it did taint their verdict and make it prejudicial as far as this plaintiff is concerned.
“Of course, that is. one of the reasons why the rule is so proper that conduct of this kind, if it occurs, should be brought prоmptly to the attention of the court. Because then the court had the jury available and could have inquired of particular jury members whether or not they heard the convеrsation and then could have made a factual determination.”
As stated by the trial judge, the conduct which plaintiff complains of occurred during the noon recess, and plaintiff did not inform either the trial court
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or her attorney of this matter until several days after the jury had returned a verdict against plaintiff. We have frequently stated that a party who learns the facts regarding the misconduct of a juror or party or any other irregularity which occurred during trial should promptly inform the trial court of such facts. One cannot suppress those facts, in hope of a favorable verdict, and then rely upon the same facts after an adverse verdict has been returned.
Cheyne v. Deike,
In appeals from the denial of a motion for a new trial, we generally defer to the discretion of the trial court.
Beglau v. Albertus,
272 Or-,
In support of her motion plaintiff testified, “there were jurors and a lot of people in thе hall” when Mr. Reid made his alleged statement. She further testified, “I don’t see how they couldn’t heаr what he said, because I heard it.”
Mrs. Straughn, plaintiff’s witness, testified on behalf of the motion as fоllows:
“Q Do yon know whether or not any of the jurors heard his remarks'?
“A Well, I don’t know how they could hеlp, because he has a very loud voice and I could hear him. * * *”
*580 In her affidavit in support of the motion, Mrs. Stranghn states:
“* * * I’m not certain any of the jurors- heard the remark, hut he was speaking so loudly I imagined they did. * * *”
Both defendant Richard Adams and defendants’ witness, Reid, denied that there were jurors within hearing range of their conversation although they admitted that they did have а conversation. However, it was not in the language related by the plaintiff.
This, is the extent оf the record. There is no substantial evidence that witness Reid actually conversed with a juror or jurors or prejudicially influenced a juror by his statements. Whether any juror heard Reid’s statement or was influenced thereby is a matter of mere speculation becausе the trial judge did- not have the opportunity to interrogate the jurors prior to their delibеration or subsequent discharge. Under these facts we conclude that the trial court did nоt abuse its discretion in denying plaintiff’s motion for a new trial.
Affirmed.
Notes
ORS 17.610:
“A former judgment may be set aside and a new trial granted on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“(2) Misconduct of the jury or prevailing party.
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