This аppeal arises from a wrongful death action brought in Johnson County. Paul Travis’ original action for the death of his wife was brought against three defendants: Meredith Lynne Stone, Lowell Walter Hulse, and Apex Digital TV, Inc., Hulse’s employer. Travis was awarded a verdict against Stone, but did not succeed in his claims аgainst Hulse and Apex. Following the verdicts for Hulse and Apex in the underlying action, Travis filed a motion for new trial on the basis that one of the jurors improperly visited the scene of the accident during the course of the trial.
The circuit court denied Travis’ motion for new trial without comment. Travis apрealed that decision to the Court of Appeals, Western District, and, after opinion, this Court granted transfer. Mo. Const, art. V, sec. 10. The basis of the appeal is that the trial court abused its discretion in denying the motion for a new trial in that the trial court erred in finding that Travis was not prejudiced by the juror’s cоnduct. Because the only evidence offered to rebut the presumption of prejudice was the testimony of that juror and because such testimony was insufficient to rebut the presumption of prejudice, the trial court judgment is reversed, and the case is remanded.
Background
Paul Travis’ wife, Valorie Travis, was killed in an accident on February 16, 1998, while traveling southbound on Missouri Highway 13, near the intersection of Missouri Route 13 and County Road 250 in Johnson County, Missouri. Valorie Travis had come to a stop on Missouri 13 while waiting to make a left turn off the highway. Defendant Stone was also traveling southbound on 13 behind Valorie Travis. Stonе took her attention away from the road momentarily. When Stone realized that Travis was stopped, she attempted to
Travis raised numerous claims of negligence against Hulse and Apex, all of which depended uрon the ability of Hulse to see and react to the first collision between Valorie Travis’ vehicle and Stone’s vehicle. The two claims of negligence most pertinent to this appeal are: (1) that Hulse, had he been using the highest degree of care, should have known that there was a reаsonable likelihood of a collision in time to have avoided colliding with Travis’ vehicle and (2) that Hulse failed to keep a careful lookout. There was a substantial amount of conflicting testimony at trial regarding the sight distance of Hulse and the reaction time available to him.
Following the trial, plaintiff Travis discovered that one of the jurors, Violet Zink, made a trip to the scene of the accident over the lunch hour, during a break in the testimony of Travis’ accident reconstruction expert. Travis then sought a new trial on the basis that Zink obtained evidence outside of that presented at trial, which bore directly on the issue of Hulse’s sight distance, an issue hotly contested at trial and which was the subject of the testimony from both sides’ expert witnesses.
At a hearing held on December 21,1999, Zink testified that she made the trip to examine the layout of the scene, including the incline of the road, bеcause she was concerned over the issue of Hulse’s sight distance and what he could have seen at the scene of the accident. She further indicated that her visit to the scene provided her with information that helped her to understand the testimony presented at trial. On the other hand, shе noted that she had lived in Warrensburg, Missouri all her life, and that she drives through the area of the scene of the accident “a hundred times a year,” and she was only trying to “refresh [her] memory.” In addition, she said she did not use the visit to the accident scene to help her decide anything, and she said that her visit to thе scene did not sway her vote one way or the other. Finally, she testified that her verdict was based upon the evidence presented at trial and that she did not mention her visit to the scene to any of her fellow jurors.
The court held that the juror’s visit to the accident scene constituted misconduсt and indicated that he would take the matter under advisement to determine whether the misconduct resulted in prejudice to Travis’ case. On January 7, 2000, the trial court entered its order denying Travis’ motion for a new trial without explanation. Travis appeals that judgment to this court.
Standard of Review
A motion for new trial, based on a juror’s acquisition of extraneous evidence, is left to the sound discretion of the trial court.
Middleton v. Kansas City Pub. Serv. Co.,
In his sole point on aрpeal, the appellant, Paul Travis, argues that the trial court erred in denying his motion for a new trial. Travis contends that because it is undisputed that juror Zink gathered extraneous evidence, the only issue before the court was whether he was prejudiced by this action. Travis argues that the trial court erred in finding no prejudice.
As a preliminary matter, we consider the issue of the propriety of allowing juror Zink’s testimony. The general rule in Missouri is that a juror’s testimony about jury misconduct allegedly affecting deliberations may not be used to impeach the jury’s verdict.
Wingate by Carlisle v. Lester E. Cox Med. Ctr.,
Also, as a preliminary matter, we note that the jurors were not specifically instructed that they should not visit the scene оf the accident. The term “misconduct,” therefore, does not precisely apply. Nonetheless, juror Zink gathered evidence extraneous to the trial. Our trial procedures do not contemplate and cannot well tolerate such independent investigation by jurors.
Although juror Zink denied that her observations at the accident scene entered into the deliberations in any way, her testimony does not necessarily settle the issue of prejudice. Travis contends that once a party has established that a juror gathered evidence extraneous to the trial, the burden shifts to the opposing party to show that no prejudice resulted from it. We agree. This rule was established in 1941 in
Middleton v. Kansas City Public Service Co.,
Presumption of Prejudice
Middleton
involved a collision between a streetcar and an automobile. There was a conflict in the evidence as to whether the streetcar struck the automobile, or vice versa. One issue that developed was whether any part of the auto would or could go under the body of the streetcar. As in the case at hand, there was evidence of juror misconduct that occurred outsidе the jury room. A juror named Tudor, who later signed the verdict as foreperson, admitted visiting various automobile establishments during the trial, in an effort to measure the height of the left rear fender of the vehicle model in question. He also admitted that he found a streetcar similar to the one in the case and measured it. The juror stated by affidavit, however, that the measurements did not influence his decision. The juror also said his measurements did not affect the verdict of any other juror or the result of the case. He said that, immediately upon retiring to deliberate, the jury, without discussion, voted
The trial court held that the juror committed misconduct, but there was no showing that the misconduct influenced the verdict. On appeal, this Court determined that the juror’s misconduct evidenced a “disposition [by the juror] not to be governed by the evidence adduced in court” and then held that prejudice to the losing party “must be presumed,” shifting the “burden of evidence” to the respondent to show the lack of prejudice to the appellant. Id. This Court then noted that the trial court decided the matter on the theory that the appellant had the burden of showing prejudice, when it should have regarded the plaintiff as having the burden of showing that prejudice did not result. This Court also distinguished the type of misconduct in Middleton (the gathering of extraneous evidence), from other types of misconduct. 2 In addition, this Court held that the jurors’ affidavits had “little probative value” because of the common tendency of jurors to minimize the effect of misconduct. Id.
In other cases, the courts have also takеn a strict view toward the acquisition of extra-trial evidence by jurors. In
Douglass v. Missouri Cafeteria, Inc.,
In this case, although juror Zink stated that her observations did not enter into the deliberations, it must be assumed that her visit had an impact on her decision making, which in turn influenced her participation in the jury deliberations. This could have subtly affected the outcome of the case, and it would be virtually impossible for anyone to demonstrate the effect of her interactions on the deliberations, especially given the fact that there is no contemporaneous record of jury deliberations.
It is true that it is generally not an abuse of discretion to deny a motion for new trial where thе juror did not obtain any “new, different or conflicting evidence” by visiting an accident scene.
Rogers v. Steuermann,
This is not a case in which a juror just happened to drive by an accident scene, without making specific observations, whеre the scene was on the juror’s normal route. This is a case in which the juror specifically had in mind the purpose of making observations, including observations as to sight distance and other factors, in order to utilize those observations in deciding the case. She, in fact, stopped and made those observations. Despite her assertion that they made no difference, she admitted that they helped her to understand the testimony, which necessarily involved reconciling the testimony of the two competing experts.
Ultimately, the ease is governed by Middleton. The errant juror in that case also contended that the measuremеnts he made did not influence his verdict or change the result. There were even affidavits submitted by nine other jurors to the effect that any measurements juror Tudor may have made had no effect on the verdict. This Court nevertheless held that the trial court abused its discretion in denying the motion for new trial, beсause the presumption of prejudice was quite strong, and the statements of the jurors minimizing the effect of the misconduct were entitled to very little weight. In such a case, therefore, the presumption of prejudice is so strong that it can rarely be overcome by statements of the juror tending tо minimize the effect of this conduct.
Furthermore, although the extent of the juror’s evidence gathering was greater in Middleton, the more important factor in determining prejudice is the materiality of the evidence, and in both cases the evidence gathered pertained to a critical issue in the сase. In that regard, the initial issue here, as noted, was defendant Hulse’s sight distance — whether he could see the first collision in order to avoid the second collision. The jury’s factual determination of the issue was essential to a resolution of the case, but the expert testimony on the issue was split. Hulse’s expert testified that the slope of the highway prevented Hulse from seeing the first collision over the crest of a hill, but Travis’ expert testified to the contrary. Under these circumstances, the presumption of prejudice from the juror’s visit to the accident scene was not overcоme.
Conclusion
Because the presumption of prejudice was not overcome, the trial court abused its discretion in denying the motion for new trial. The judgment is reversed, and the case is remanded for a new trial.
Notes
. This opinion is taken in large part from the opinion submitted by the Honorable James M. Smart of the Court of Appeals, Western District, before this Court granted transfer.
. In the more recent case of
Mathis v. Jones Store Company,