Day v. Panos

DURHAM, Justice: This is an appeal from the denial of the plaintiffs motion for a new trial under Utah R.Civ.P. 59(a)(2) and (5). Because we find the verdict is a “chance” verdict in violation of Rule 59(a)(2), we reverse the trial court’s denial of the motion for a new trial. We do not, therefore, reach the question of whether a new trial is warranted under Rule 59(a)(5). In the original action, a dog bite case, the jury’s verdict attributed 74% of the negligence to the plaintiff. The trial judge entered judgment on the verdict of no cause of action. The plaintiff contends the verdict was rendered by chance in violation of Rule 59(a)(2). We agree. Rule 59(a)(2) provides that a new trial may be granted for: “Misconduct of the jury; and whenever one or more of the jurors have been induced to assent to any general or special verdict ... by resort to a determination by chance ... such misconduct may be proved by the affidavit of any one of the jurors.” The plaintiff’s contention is based on an affidavit of the jury foreman that sets forth the process used by the jury in determining its special verdict. Paragraph 3 of the affidavit states that each juror submitted a slip of paper on which he or she wrote the percentage of negligence attributable to the plaintiff and the percentage attributable to the defendants. These [405] figures, paragraph 3 continues, then were added together and the totals were divided by the number of jurors to arrive at the final determination of the parties’ negligence. Likewise, paragraph 4 of the affidavit provides that each juror submitted slips of paper indicating the amounts of general and special damages to which the juror felt the plaintiff was entitled. These figures, according to the affidavit, also were added together, and the totals were divided by the number of jurors to determine the average sums for general and special damages. These descriptions in the affidavit meet the definition of a chance verdict as articulated by this Court in Wright v. Union Pacific R.R., 22 Utah 338, 62 P. 317 (1900). In Wright, we held that where a verdict is determined by each concurring juror’s separately fixing the amount to be awarded, then the various amounts being added together and the sum divided by the number of concurring jurors, the verdict is a chance verdict. It is well settled that what makes a quotient verdict subject to relief under Rule 59(a)(2) as “a determination by chance” is not the process of averaging, but the jurors’ prior agreement to be bound by the outcome of the computation. See, e.g., Mitchell v. Arrowhead Freight Lines, Ltd., 117 Utah 224, 214 P.2d 620 (1950); Pence v. California Mining Co., 27 Utah 378, 75 P. 934 (1904); Wright v. Union Pacific R.R., supra, 76 Am.Jur.2d Trial §§ 1135-36 (1975). The juror affidavit filed with the motion for a new trial in this case complies with this rule. The affidavit says: Prior to arriving at the figures described in paragraphs 3 and 4 of this Affidavit, each juror agreed that we would be governed by the figures arrived at through the process of averaging the total of each juror’s individual opinion. Thus, the affidavit states the jurors agreed in advance to be bound by the averages attained. The juror, therefore, was induced to assent to the special verdict by resort to a determination of chance. The dissenting opinion of Chief Justice Hall suggests that some evidence of “inducement” beyond an agreement in advance must be proved before the requirements of Rule 59(a)(2) are met. Clearly, the agreement by all jurors to be bound, by itself, may constitute an inducement to one or more jurors to enter the undertaking. Otherwise, it appears that some form of physical or verbal coercion would always be necessary before jury misconduct could be shown. It is true, as pointed out in Justice Oaks’ dissent, that a trial judge is free to disbelieve evidence, including affidavits. But any ruling of the trial judge must contain some basis in the record, and the party opposing the motion for a new trial failed to offer any basis for controverting or disbelieving the uncontroverted testimony of the jury foreman. Even if the trial judge distrusted such testimony “on principle,” without more, the proper procedure would have been to require the witness to testify in person to permit further investigation of the misconduct set forth in the affidavit. The dissent seems to suggest that the moving party was required to produce more in this case than the affidavit showed. That suggestion, however, is directly contrary to the language of Rule 59, which specifically permits the use of affidavits and specifically defines the kind of misconduct described by this affidavit. The fact that the affidavit may be inadequate to show the state of mind of any juror besides the affiant is also not relevant, since the rule defines misconduct as an inducement to assent on the part of “any one or more of the jurors.” The plaintiff’s motion for a new trial is granted, and the judgment of the lower court is reversed. STEWART and HOWE, JJ., concur.