Aftеr a verdict was rendered for the appellant in this wrongful death action, counsel for the appellee was gtanted a new trial on the ground of juror misconduct. The misconduct alleged was that two jurors failed to respond when thе court asked all the jurors if they had litigation pending in the circuit court or were involved in litigation in which the lawyers for either side in this case were participants. The appellant asks us to set aside the new trial order. We decline tо do so.
The judgment based on the jury verdict was rendered February 9, 1978. The new trial motion was filed February 17, 1978. The judge took the motiоn under advisement on March 15, 1978, but reached no decision prior to his retirement from the bench. His successor granted thе motion after a hearing.
No record was made of the voir dire of the jurors. In his verified motion for new trial, however, the appellant’s counsel stated the court asked the jurors if any of them had litigation pending before it or were invоlved in litigation in which counsel in this case were participants. He further stated that the two jurors in question made no answer. No counter-affidavit or other evidence on this matter was presented by the appellant.
An affidavit of the сircuit clerk was presented by the appellee showing the two jurors were parties to cases pending before the court, and that their interests were being opposed in those cases by counsel representing the defеndant (appellee).
The appellant argues the granting of the new trial motion was improper because (1) the appellee’s counsel did not show diligence in discovering the facts with respect to the jurors, (2) no prejudice occurred to the appellee, and (3) there was no record from which the court could ascertаin the question asked or the answers given or not given.
1. Diligence
We agree with the appellee’s counsel that it would be unreаsonable to require counsel to check the entire docket of the court to assure jurors are not parties to cases before the court or shown on the record as having a relationship to counsel in the cаse. We hold the diligence requirement of A. R. Civ. P. 59 and superseded Ark. Stat. Ann. § 27-1901 (Repl. 1972), does not go that far.
2. Prejudice
The appellant sаys the appellee was not prejudiced here because both of the jurors had interests opposed tо the counsel for the appellant. Unlike the juror in the case of Big Rock Stone & Material Co. v. Hoffman,
3. Lack of Record
This point troubles us more than the othеrs. The appellant correctly says the trial court had no record before it from which it could ascertain the questions asked the jurors or the answers given. That is correct to the extent it is the same as saying no transcript was madе at the trial of the voir dire of the jurors. However, the trial court did have, in addition to the clerk’s affidavit showing the jurors as parties in pending cases, the verified new trial motion, sworn by the appellee’s lawyer, which said, in part:
At the commencement of the trial after the jury had been sworn to answer questions concerning their qualifications, the Court had askеd the jury if any of them had a case now pending before the Circuit Court of Conway County. That none of the jurors either answered or in any way indicated that they had any case now pending before the Circuit Court. That in truth and in fact, the juror, Wanda J. Alvеy, has a case pending in the Circuit Court of Conway County, the style of the case being .... That the juror, Joe R. Johnson, has a сase pending in the Circuit Court of Conway County, said case being styled.....
The appellant contends this was “testimony” on the part of counsel for a party and thus not to be allowed. We are aware of the rule of the many cases the appellant has cited on this point that one should not be allowed to take the witness stand in a case in which оne acts as counsel. We cannot ignore, however, the cases in which, after a trial is over, and there is need to “reconstruct” the record counsel’s affidavits, and indeed their oral testimony, are properly considered. E.g., Lemley v. Fricks,
In this case the judge said he would assume the facts were as stated in the verified motion. We do not find that to be an unwarranted assumption in view of the fact that the motion was made by an officer of the court stating facts under оath. Although the appellant says the facts were in dispute as to what was asked to the jurors, we find no evidence offered in any form which contradicts the appellee’s counsel’s statements in the motion.
We hold the statements in the verified motion are substantial evidence, and the burden was thereby cast upon the appellee to ovеrcome it. It is troublesome that the judge who granted the motion was not the one who heard the voir dire, but we cannot say that fact should change the outcome. Had the original judge heard the motion, the evidentiary requirement and the inadequacy of the voir dire record would have been the same. The lack of a complete record оn the matter as to which error is alleged is no impediment to appeal. See A.R. App. P. 6(d). We hold it should not be a bar to a new trial when substantial evidence of what transpired is before the trial court even though the judge may not have presided over the original proceedings.
Affirmed.